Smith v Brough

Factual and Procedural Background

This opinion concerns an application by the Appellants for an extension of time and permission to appeal against a prior order made by Mr Recorder Hirst on 4 September 2001. The order concerned the determination of the boundary between two neighbouring properties located at 44 Middle Drive and 46 Middle Drive in a residential estate. The Recorder found in favour of the Respondents, who were the claimants at trial, and granted a permanent injunction and damages against the Appellants for trespass.

The dispute arose from conflicting claims about the precise location of the boundary line between the two properties, involving issues such as the placement of fences and planting of trees. The Appellants contested the trial judge’s findings, particularly regarding the existence of a boundary agreement and the positioning of certain physical features marking the boundary. The Appellants sought to introduce fresh evidence and argued that the trial judge made errors in fact-finding.

The trial lasted approximately four days and involved multiple witnesses, including the parties themselves and other individuals connected with the properties. The judge made detailed findings of fact concerning the history of fences and planting, the existence of an alleged boundary agreement or estoppel, and the legal boundary as shown in conveyancing documents and plans.

The application under consideration is procedural, seeking to extend the time for appealing the original boundary order and to obtain permission to appeal.

Legal Issues Presented

1. Whether the trial judge was correct in concluding that a boundary agreement existed between the parties or their predecessors in title, fixing the boundary along the wire mesh fence line.
2. Whether the judge correctly applied the doctrine of estoppel to prevent the Appellants from asserting a boundary different from the wire mesh fence line.
3. Whether the judge erred in his factual findings regarding the planting and location of Leylandii trees relative to the boundary.
4. Whether the boundary should have been determined according to conveyancing documents and historic boundary position rather than the judge’s findings based on conduct and physical features.
5. Whether the Appellants should be granted an extension of time to appeal and permission to appeal, considering the delay and procedural circumstances.

Arguments of the Parties

Appellants' Arguments

• The judge erred in finding a boundary agreement because it was not pleaded and was not supported by the evidence presented at trial.
• The judge improperly inferred a boundary agreement and estoppel without direct evidence, particularly lacking evidence from a key witness, Mr Mulhern.
• There were inconsistent findings regarding the planting of Leylandii trees; the judge accepted Mr Turnbull’s evidence but then found the trees were planted on the wrong side of the boundary.
• The judge’s conclusion that the wire mesh fence replaced the post and rail fence contradicted photographic evidence.
• The boundary should be located as per conveyancing documents and historic boundary lines rather than the judge’s factual findings.
• The delay in filing the appeal was justified because the Appellants needed to obtain further evidence from Mr Mulhern and a surveyor, Mr Mills, to support their case.
• The location of the boundary as found prejudices the Appellants by causing a breach of local bylaws and significantly reducing the value of their property.
• The Appellants kept the Respondents informed of their position and inquiries during the delay period.

Respondents' Arguments

• The Respondents are prejudiced by the absence of a trial transcript or adequate notes, which impairs their ability to respond effectively to the appeal.
• The issue of a boundary agreement was raised by the trial judge and addressed in the trial, including in the Respondents’ skeleton argument, which noted lack of evidence supporting such an agreement.
• The Appellants could have applied to recall Mr Mulhern during the trial but did not do so, and the judge would likely have permitted it.
• The delay in applying for permission to appeal was substantial and not promptly made; the Appellants initially pursued a claim against Mr Mulhern unrelated to the boundary appeal.
• The Appellants cannot satisfy the criteria for extension of time under CPR 3.9, including lack of promptness and no good explanation for delay.
• The expert evidence from Mr Mills was available before trial and does not justify the delay in lodging the appeal.
• The judge’s findings of fact, including the existence of a boundary agreement and estoppel, were not erroneous in law and supported by evidence.
• Permission to appeal should be refused as there is no real prospect of success and the appeal is prejudicial to the Respondents.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the principles of finality in litigation, referencing established authorities that emphasize the importance of closing disputes and limiting appeals out of time to exceptional cases. The court applied the checklist in CPR 3.9 to assess the Appellants’ application for an extension of time and permission to appeal.

The court noted the significant delay of approximately 39 months between the original judgment and the filing of the Notice of Appeal, with no disability or exceptional circumstance justifying the delay. It emphasized that all material grounds for appeal were available to the Appellants immediately after the judgment and that the delay in filing was not attributable to inadvertence but was a deliberate choice.

The court found that the Appellants had opportunities during the trial to address the boundary agreement issue, including recalling witnesses, but failed to do so. The proposed new evidence from Mr Mulhern and the surveyor Mr Mills was either unavailable at trial or did not justify the delay in appealing, as the relevant facts were known or could have been known earlier.

Balancing the interests of finality, the prejudice to the Respondents caused by the absence of a trial transcript, and the public interest in certainty, the court concluded that the Appellants had not met the criteria to warrant an extension of time or permission to appeal.

The court also reiterated the high standard of deference appellate courts must afford to trial judges’ findings of fact, particularly in boundary disputes where credibility and site inspections are crucial. It noted that the trial judge’s findings were not shown to be plainly wrong or legally erroneous.

Holding and Implications

The court DISMISSED the Appellants' application for an extension of time and permission to appeal.

The direct effect of this decision is that the original order determining the boundary between the two properties, including the injunction and damages awarded to the Respondents, remains final and binding. The Appellants are ordered to pay the Respondents’ costs, with a specified payment on account to be made within 14 days.

No new legal precedent was established; the decision reinforces established principles regarding finality in litigation, the strict approach to extensions of time for appeals, and the deference accorded to trial judges’ findings in boundary disputes.