Erratt v Local Land Board Armidale [2008] NSWSC 959

New South Wales Supreme Court

CITATION : Erratt v Local Land Board Armidale [2008] NSWSC 959

HEARING DATE(S) : 1 & 2 September 2008

JUDGMENT DATE : 18 September 2008

JURISDICTION : Common Law

JUDGMENT OF : Harrison AsJ

DECISION : (1) The summons filed 29 February 2008 is dismissed. (2) Each party is to pay their own costs.

CATCHWORDS : MANDAMUS - Dividing fence

LEGISLATION CITED : Dividing Fences Act 1989 Dividing Fences Act 1991

CATEGORY : Principal judgment

CASES CITED : Landale v Menzies [1909] 9 CLR 89

Gillian Wren Erratt (Plaintiff) PARTIES : Local Land Board for the District of Armidale (First Defendant) Abbott John Grills (Second Defendant) Phillipa Maree Grills (Third Defendant)

FILE NUMBER(S) : SC 30019/2008

COUNSEL : J O'Connor (Plaintiff) J Turnbull (Second & Third Defendants)

Patterson Byfield & Bryan (Plaintiff) SOLICITORS : Legal Services Department of Lands (First Defendant) Moin & Associates (Second & Third Defendants)

LOWER COURT JURISDICTION : Local Land Board for the District of Armidale

LOWER COURT JUDICIAL OFFICER : The Chairman

LOWER COURT DATE OF DECISION : 13 February 2007

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

ASSOCIATE JUSTICE HARRISON

THURSDAY, 18 SEPTEMBER 2008

30019/2008 - GILLIAN WREN ERRATT v LOCAL LAND BOARD FOR THE DISTRICT OF ARMIDALE

JUDGMENT (Mandamus - dividing fence) 1 HER HONOUR: These proceedings have had an unfortunate history. The issue relates to the location of a dividing fence between the rural farming neighbours. The dispute has occupied a large amount of court time. To date the parties adopted the approach of interpreting the court orders in a way that best suits their own interests. This type of conduct is most unsatisfactory particularly as it is the parties themselves that know the land better than anyone else and are in the best position to articulate the orders upon which they agree. 2 The plaintiff is Gillian Wren Erratt. The first defendant is Local Land Board for the District of Armidale (the Land Board). It did not play any role in these proceedings for reasons that will become apparent shortly. The second defendant is Abbott John Grills and the third defendant is his wife Phillipa Maree Grills (the Grills). For convenience I will refer to the parties by name. Mrs Erratt relies on her own affidavits dated 26 February 2008 and 5 June 2008, the affidavit of James Levingston dated 25 March 2008 and the affidavits of Noel Hoy dated 26 February 2008 and 5 June 2008. Mr Hoy is the farm manager on the Erratt property. The Grills rely on the affidavit of Abbot John Grills dated 29 May 2008 and the affidavit of Glenn Edward Fittler also dated 29 May. All deponents were cross examined. 3 Normally I would comment on the demeanour of the witnesses. As it turns out, there are no factual disputes that need to be resolved in order to decide the outcome of these proceedings, except for one, which I shall refer to later in this judgment. I have said all I want to about the behaviour of the litigants in the opening paragraph. 4 Mrs Erratt is the owner of the property known as "Araluen East" situated on the eastern side of the creek known as Tilbuster Ponds on the New England Highway at Armidale. Her property is about 200 acres. She runs a couple of hundred cattle on her property. The Grills own the adjoining property, known as "Richetta", to the western side of the creek. It is about 20 acres. The Grills have between six to eight horses and 40 sheep on the property. They are neighbouring rural farming properties. 5 In about February 2006 a dispute arose between Mrs Erratt and the Grills as to the location of a dividing fence ('the dividing fence') that separated the two properties along Tilbuster Ponds 15 metres onto "Richetta". 6 On 31 March 2006 the Grills made an application (the first application) to the Land Board pursuant to the Dividing Fences Act 1989 ("the Act") for an order that fencing work be carried out along the creek. It sought the following fencing work to be carried out "Tilbuster Ponds is the boundary and we would appreciate Mrs G Erratt to fence her side of it. Lots 3 & 4 DP 565793 and Mrs Erratt's Lot 6 of DP 717734." In the application, it was noted that the fencing work consisted of steel posts and wire.