Stilgoe v Llowarch [2005] NSWSC 520

New South Wales Supreme Court

CITATION : Stilgoe v Llowarch [2005] NSWSC 520

HEARING DATE(S) : 31 May 2005

JUDGMENT DATE : 6 June 2005

Common Law Division JURISDICTION : Administrative Law List

JUDGMENT OF : Master Malpass at 1

DECISION : The summons is dismissed; the plaintiffs are to pay the costs of the summons.

CATCHWORDS : Dividing fences - appeal from Local Land Board - construction of s26 - need for legislative change so that small claims can be dealt with in more appropriate forum.

LEGISLATION CITED : Dividing Fences Act 1991, ss14, 26

CASES CITED : Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

Bernard Stilgoe & Susan Stilgoe (Plaintiffs) PARTIES : Greg Llowarch (First Defendant) Local Land Board of New South Wales, Lands Division of Grafton (Second Defendant)

FILE NUMBER(S) : SC 30086 of 2004

In person (Mr Stilgoe for the Plaintiffs) COUNSEL : Mr B Saunders (First Defendant)

In person (Plaintiffs) SOLICITORS : Burridge Harris & Flynn (First Defendant)

LOWER COURT JURISDICTION : Grafton District Land Board

LOWER COURT FILE NUMBER(S) : 22/06/04

LOWER COURT JUDICIAL OFFICER : Chairman McCue, Members Adams & Cartmill

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

Master Malpass

6 June 2005

30086 of 2004 Bernard Stilgoe & Anor v Greg Llowarch & Anor

JUDGMENT 1 Master: The plaintiffs and the first defendant are adjoining landowners in the Grafton area. There had been an existing fence on the common boundary. It had been erected by the plaintiffs. 2 The first defendant brought an application pursuant to the Dividing Fences Act 1991 (the Act). He sought orders pursuant to s14 thereof. The application was determined by the Local Land Board (the Board). There was a hearing and a site inspection (on 22 June 2004). The decision was handed down on that day. Written reasons have been given. Orders were made as follows:- The Board makes an order under section 14 that:- (1) the fencing work is to be carried out on the existing line of the fence; (2) the fencing work to consist of the demolition of the existing fence, the supply and erection of the new fence consisting of split timber posts, timber strainer posts and stays and the use of wire from the existing fence; (3) the fencing work to be carried out by Mr Llowarch; (4) Mr and Mrs Stilgoe's contribution to the cost of the fencing work to be $697. That contribution to be paid to Mr Llowarch by the 30th of September 2004. 3 Following the making of the orders, unaware of any intention on the part of the plaintiffs to bring an appeal, the fencing work was completed by the first defendant on 29 September 2004. On that day, the plaintiffs paid their contribution to the cost of the fencing work. 4 On 5 October 2004, the plaintiffs brought an appeal. The appeal has been brought well out of time (it should have been brought by 2 August 2004). Unless an extension of time is granted, the appeal remains incompetent. 5 The appeal was heard on 31 May 2005. The plaintiffs were not legally represented (their case was presented by Mr Stilgoe). The first defendant was represented by counsel (Mr Saunders). 6 Before addressing the question of extension of time, it is convenient to turn to the question of the merits of the appeal. 7 An appeal may be brought where there is error in point of law. On this question, the plaintiffs rely on the provisions of s26 of the Act. The relevant provisions of that section are as follows:- 26 Nothing in this Act affects: (a) any covenant or any contract or agreement (other than an agreement arising under this Act) made between adjoining owners in respect of a dividing fence before or after the commencement of this Act … 8 The plaintiffs say that an agreement was made which fell within the ambit of the section (in the transcript of the hearing before the Board, it is referred to as a common law agreement). 9 There is dispute between the parties as to whether or not any such matter was an issue agitated during the hearing before the Board. It was raised at an early stage of the hearing (see p3 of the transcript) after correspondence (including a letter dated 13 January 2004 from the plaintiffs) was placed before the Board. Apart from the correspondence and what arose from the exchanges between the parties, there was no other evidence taken (in particular there was no oral evidence as to the conversations said to give rise to any such agreement). 10 The transcript records, inter alia, the following [at p3]:- BStilgoe I'm quite happy with the steel. At the risk of muddying the pool, Mr Llowarch and I entered a common law agreement when he first came here. Er. He was very happy that I'd fenced the place and he couldn't fence it. And… McCue That's pretty well contained in that letter of the 13th January. That's pre history. Um. You also make further comments? BStilgoe Yes indeed um and he also said that he was going to put the next fence in and later he communicated that he intended to … uh asked if it was convenient for him to upgrade the fence where possible and I agreed to that. McCue Hm Hm, Well, what do you say about that? Llowarch Well the first time we ever met Bernie before we bought the block of ground he was erecting that post and wire fence. So I don't know why I would have said that the next one is on me because I didn't own the property at the time that it was going up. McCue So you dispute that there was any what is referred to as a common law contract between you about what was going to happen to the fencing? McCue Well I think that the common law contract may well have been overtaken by the Dividing Fences Act being an Act of Parliament. Ah but well ah so is the issue down to timber posts or steel posts? 11 The transcript conveys the impression that after it was so raised, it was put aside following the observation by the Chairman (Mr McCue). The plaintiffs say that this observation was erroneous as a matter of law. Be that as it may, the effect of what happened was that the matter of the agreement was no longer pursued, with attention being concentrated on issues concerning the fence itself. 12 As a consequence, the matter was not pressed as an issue and there was no evidence of any covenant, contract or agreement before the Board which would have satisfied the section. 13 It must be appreciated that the proceedings in this Court are of an appellate nature. The Court is not engaged in a fresh hearing of what was dealt with by the Board. Generally speaking, this Court does not allow fresh arguments to be run during an appeal (see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438). In this case, it was a matter upon which the first defendant could have been expected to both lead evidence and make submissions. In the circumstances of this case, I do not consider that the plaintiffs should be allowed to ventilate it in this appeal. 14 The contents of the plaintiffs letter give the impression that future fencing arrangements had been discussed. On the plaintiffs' version, the first defendant had said things which might be regarded as statements of future intention (he would erect the next fence). It could not be concluded from the material before the Board that a binding legal agreement had come into existence. 15 Section 26 of the Act appears not have been the subject of any decided case. The reading speeches do not really assist in the task of its proper construction. The speeches did contain the following:- Fencing legislation not relating to dividing fences will remain outside the ambit of the bill. [NSW Legislative Assembly Hansard 10 December 1991] Similarly there will continue to be no interference with private arrangements such as fencing covenants. Instead the bill addresses those situations where adjoining owners are involved in decision about the kind of dividing fence that is to separate their lands and the sharing of the costs of that fence. [NSW Legislative Council Hansard 11 December 1991] 16 Counsel was unable to assist as to the proper meaning to be given to the section. 17 The section (which is a miscellaneous provision) seems to be of the nature of a savings provision. The intention is to preserve that which falls within (a), (b) and (c) thereof. In respect to (a), I consider that reference to "any covenant or any contract or agreement" contemplates only a legally binding covenant, contract or agreement. The reference excludes "(other than an agreement arising under this Act)". This exclusion would appear to contemplate any agreement arising from the exercise of the procedures provided by ss11 and 12. 18 What has been said makes it clear that, for a number of reasons, the appeal lacks merit. There is no error in point of law which would justify the disturbing of the Board's decision. 19 For this reason alone, the Court would not grant an extension of time in which to bring the appeal. 20 However, in this case, there are other reasons for not granting an extension of time. 21 The delay is significant. During that time, the orders of the Board have been complied with (including the payment by the plaintiffs of the sum of $697). The parties now have a dividing fence which complies with those orders. There would be prejudice to the first defendant if what has happened is now to be disturbed. 22 Unfortunately for the plaintiffs, this is an appeal that should not have been brought. It seems that the bringing of it may have been motivated by what was perceived as an erroneous rejection by the Chairman of the matter of the common law agreement. The plaintiffs do not seek to disturb the existing fencing arrangements. Initially, it was said that a repayment of the sum of $697.00 was not sought. Later, there was a change of position in relation to that sum. 23 Before concluding, I should observe that the Court sees as a serious problem the numerous appeals being brought to it concerning small disputes. 24 As in many other cases, what is involved in this case is extremely modest when regard is had to the monetary jurisdiction of this Court. It is in the interests of both the public and the parties that such cases be dealt with in a more appropriate forum. There are powerful reasons for legislative change to take place so as to avoid the situation where so much of the valuable time of this Court is being taken up by numerous small claims which put the parties to legal expense which may exceed or at least be grossly disproportionate to what is in issue. 25 The summons is dismissed. The plaintiffs are to pay the costs of the summons. **********