New South Wales Supreme Court CITATION : Mezzagosto v Carnuccio & Anor [2004] NSWSC 285 HEARING DATE(S) : 5 April 2004 JUDGMENT DATE : 13 April 2004 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) The appeal is dismissed; (2) The decision of Magistrate Maughan dated 26 September 2003 is affirmed; (3) The amended sumons filed 28 November 2003 is dismissed; (4) The plaintiff is to pay the defendants' costs as agreed or assessed. CATCHWORDS : Appeal decision of Local Court Magistrate - dividing fence Dividing Fences Act 1991 LEGISLATION CITED : Local Court (Civil Claims) Act 1970 (NSW) Local Court (Civil Claims) Rules 1988 (NSW) Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 CASES CITED : Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Devries v Australian National Railways Commission (1993) 177 CLR 472 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588 Maria Mezzagosto (Plaintiff) PARTIES : Mario Carnuccio (First Defendant) Maria Carnuccio (Second Defendant) FILE NUMBER(S) : SC 12804/2003 Mr P G Fisher (Plaintiff) COUNSEL : Mr P Barham (Defendants) Mr G Elias, Elias Gates & Associates Pty Ltd (Plaintiff) SOLICITORS : Mr M Mattick, Bond & Bond (Defendants) LOWER COURT Local Court JURISDICTION : LOWER COURT 323/2003 FILE NUMBER(S) : LOWER COURT Maughan LCM JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON TUESDAY, 13 APRIL 2004 12804/2003 - MARIA MEZZAGOSTO v MARIO CARNUCCIO & ANOR JUDGMENT (Appeal decision of Local Court Magistrate - dividing fence) 1 MASTER: By amended summons filed 28 November 2003 the plaintiff seeks firstly, an order pursuant to s 69(4) of the Local Court (Civil Claims) Act 1970 (NSW) or Part 26 r 3 of the Local Court (Civil Claims) Rules 1988 (NSW) that the order of Magistrate Maughan at the Sutherland Local Court on 26 September 2003 finding for the defendants in relation to the plaintiff's application pursuant to s 19 of the Dividing Fences Act 1991 (NSW) (the Act) be set aside; secondly, a declaration that the Magistrate erred in law and that his finding was perverse due to the fact that there was no evidence to support the finding; thirdly, an order that the plaintiff be granted leave to appeal the order made by the Magistrate pursuant to the Act; fourthly, an order pursuant to s 69 of the Local Courts (Civil Claims) Act or Part 51A for the erection of the fence along the boundary line of the properties located at 24 and 26 Yoorami Road, Beverly Hills; fifthly, in the alternative, an order pursuant to such provisions that the matter be remitted to the Magistrate to be dealt with according to law. The appeal 2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section19(2) of the Act permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. It cannot be said that the Tribunal member acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588. Grounds of appeal 3 The plaintiff appeals the whole of the decision of Magistrate Maughan. The grounds of appeal are firstly, that the Magistrate erred in law and his finding was perverse in that he determined the fence to be erected between the subject properties as shown on "Survey Exhibit 6 page marked 'Option (a)(II)'" and not on the boundary line of the properties; secondly, the Magistrate erred in law in using his discretion by relying on the report of John G Nelson Pty Ltd dated 19 September 2003; thirdly, the Magistrate erred in law and denied the plaintiff natural justice in denying her the opportunity to the address the Court in relation to the matters relevant to the exercising of any discretion pursuant to s 14 of the Act; and fourthly, the Magistrate erred in law in not properly considering the provisions of the Act. Background 4 On 8 April 2003 the plaintiff served a notice on the defendants under s 11 of the Act. On 15 May 2003 the plaintiff filed an application with the Local Court for an order for fencing work pursuant to s 12 of the Act on the basis that the erection of a fence should occur along the common boundary line of the properties. The defendant defended the action on the basis that the erection should not occur along the common boundary line of the properties but should rather be erected partially on the common boundary line and partially on the plaintiff's property. The plaintiff submitted that if the defendants wished to seek these orders they should have lodged an application pursuant to s 18 of the Act. The defendants defend this matter on the grounds that they elected. They were entitled to seek to rely upon evidence to support their case. The defendants were not obliged to lodge an application under s 18. 5 On 26 September 2002 the Magistrate heard the matter. The defendant relied on the survey report of John G Nelson Pty Limited dated 19 September 2003. The Magistrate made the following order (t 71.36): "…a fence is to be erected between the subject properties as shown on survey exhibit 6, page headed "Option A2", the fence to be a six-foot Colorbond fence, cream in colour. From the front point of this fence a one-metre Colorbond fence in same colour is to be erected on the boundary line to the front fence alignment. The respondent is to pay the whole of the costs of erection and clearing of the current fence, and the fence is to be erected within a period of two months." 6 The plaintiff submitted that the Magistrate took into account evidence that should not have been admitted, this being the 19 September 2003 report of John G Nelson. This report was admitted into evidence without objection (t 24.41). The operation of ss 11 and 14 of the Act 7 The main issue raised in this appeal is the operation and interplay, if any, between ss 11 and 14 of the Act. The plaintiff submitted that the Magistrate was obliged to make an order that the fencing work had to be carried out on the common boundary line in accordance with s 14(1)(a) or alternatively if it was found to be impracticable to carry out fencing on the common boundary line, the Magistrate could make an order that the fencing be carried out on a line (other than the boundary line). The Magistrate did not make a finding that fencing on the common boundary line was impracticable. According to the plaintiff's submissions it was merely inconvenient for the fence to be located on the common boundary line. The plaintiff submitted that in not making such a finding the Magistrate made an error of law. 8 The starting point in the analysis of the relevant provision of the Act is at s 3 of the Act which defines "dividing fence" as "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". According to the definition a dividing fence does not have to be on the common boundary. Part 3 of the Act is headed "Procedure and Implementation". The procedure and implementation is covered in ss 11 to 19. 9 Section 11 deals with the first step in the process, namely notifying the adjoining owner that the other owner seeks to have fencing work carried out. The relevant portion of s 11 states: "11 Notice to carry out fencing work (1) An adjoining owner may require the other adjoining owner to contribute, under this Act, to the carrying out of fencing work by serving a notice in writing to that effect on the other owner. (2) The notice is to specify the following: (a) the boundary line on which the fencing work is proposed to be carried out or, if it is impracticable to carry out fencing work on the common boundary of the adjoining lands, the line on which it is proposed to carry out the work, (b) the type of fencing work proposed to be carried out, (c) the estimated cost of the fencing work. (3) The owner serving the notice may propose that the cost of the fencing work is to be borne otherwise than in equal proportions. In such a case, the notice is to state the proposed proportions. (4) The description of land in a notice need not particularly define the land if it allows no reasonable doubt as to what land is referred to in the notice. …" 10 Section 12 sets out the procedure to be followed where agreement is not reached after the notice has been issued and served. If the owners do not agree within 1 month (after service of the notice) as to the fencing work to be carried out, either owner may apply to a Local Court or a local land board for an order determining the manner in which the fencing work (if any) is to be carried out. Section 13 gives jurisdiction to the Local Court to hear and determine any matter arising under the Act. 11 More relevantly, once the Local Court is seized of jurisdiction the orders that the Magistrate may make are set out in s 14. Section 14 of the Act states: "14 Orders as to fencing work (1) A Local Court or local land board may, in respect of an application under this Act, make an order determining any one or more of the following: (a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands, (b) the fencing work to be carried out (including the kind of dividing fence involved), (c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned, (d) which portion of the dividing fence is to be constructed or repaired by either owner, (e) the time within which the fencing work is to be carried out, (f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land, (g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands. … (2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act." The hearing in the Local Court 12 At the outset of the hearing the legal representatives defined the issues in dispute. Both parties conceded that "at the moment" the existing dividing fence needed renewal (t 1-2). There was no dispute as to where the common boundary was located. The plaintiff's solicitor stated the issue as being that the defendants wanted to use part of the land owned by the plaintiffs and the plaintiffs wanted the fence located on the boundary. 13 Mr Mattick, the solicitor who appeared for the defendants elaborated and said (t 2.46): "… the issue basically is that my clients say that without the fence being located 30 centimetres on to the adjoining property they will not be able safely to drive two of – they have four cars, but two of their cars – the two smaller vehicles – between their residence and the fence to park them in a garage and a carport which is located at the rear of the property and which they have been using for the 10 years that they've been at the property, and for the whole of the time that there has never been a fence on that section." 14 Mr Mattick then stated that if the Magistrate indicated that the fence had to be located on the boundary, the defendants would want the fence to be a five-foot paling fence because there was greater chance of the fence being damaged by them moving their vehicles in and out of the property if they attempted to do so, and it would be easier to repair a paling fence than a Colourbond fence. However Mr Mattick then made two concessions, namely firstly, that if the Magistrate was prepared to order that the fence be located 30 centimetres on to the plaintiff's property, his clients would make some concessions namely that they would be happy to have a six-foot Colourbond fence erected in the colour sought by the plaintiff and secondly, if the Magistrate made some kind of order of compensation for the fact that the defendants would have use of a small part of the plaintiff's land the defendants were prepared to bear the full costs of the construction of the fence. 15 As previously stated, the Magistrate made an order firstly, for the fence to be built partly along the common boundary and partly 0.3 metres on the plaintiff's property. Secondly, the Magistrate ordered that it be a Colourbond fence and thirdly, ordered that the defendants were to bear the costs of the fence. The second and third orders were in accordance with the concessions made by the defendants at the outset of the hearing. 16 Part 3 of the Act sets out in sequential order the steps to be taken where one owner wishes to have fencing work carried out on adjoining land. It commences with the issue of a notice and where the parties do not reach agreement in relation to the fence the next step is set out, namely the court proceedings. The Magistrate's discretion to make orders in accordance s 14 is not to be read subject to s 11 of the Act. Section 14 is not so limited. Section 14(a) empowers the court to make an order determining the boundary or line on which the fence work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining land. Also (at t 58.47) the Magistrate asked the plaintiffs: "Under the Dividing Fences Act, it says I don't have to make an order that goes on the boundary, don't I." Mr Elias (at t 58.51) answered "Well, sir, under the Act you have that discretion." The Magistrate was entitled, in the exercise of his discretion to come to his decision. There is no error of law. Further, the plaintiff submitted that the Magistrate was not entitled to proceed and make an order for compensation without evidence from the plaintiff's camp. Section 14(1)(f) empowers the Magistrate to order an amount of compensation in consideration of loss of occupation of any land. It should be noted that the occupation of land on either side of the dividing fence as a result of an order determining that the fencing be carried out otherwise on the common boundary of the adjoining land is not to be taken against the owner to be adverse possession or affect the title of possession of the land. If the plaintiffs were not ready to proceed on the issue of compensation their solicitor should have sought an adjournment. This order was one which the Magistrate could consider making under s 14. There is no error of law. The appeal is dismissed. The decision of Magistrate Maughan dated 26 September 2003 is affirmed. The amended summons filed 28 November 2003 is dismissed. 17 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed. 18 The Court orders: (1) The appeal is dismissed. (2) The decision of Magistrate Maughan dated 26 September 2003 is affirmed. (3) The amended summons filed 28 November 2003 is dismissed. (4) The plaintiff is to pay the defendants' costs as agreed or assessed. ********** Last Modified: 04/14/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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