Shades of Lord Denning

July 23, 2014

Great wall

Lord Denning is well known for his storytelling style of judgment writing. The opening words of Lloyds Bank v Bundy [1975] QB 326 always make me smile:

Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy, the defendant, was a farmer there. His home was a Yew Tree Farm. It went back for 300 years. His family had been there for generations. It was his only asset. But he did a very foolish thing. He mortgaged it to the bank. Up to the very hilt.”

I can’t help the feeling that Justice Harrison was inspired by Lord Denning when he wrote his judgment in Hill v Higgins [2012] NSWSC 270 (which was an out of all proportion dispute between two neighbours about a retaining wall). The case occupied 2 full days of hearing in the NSW Supreme Court and ultimately resulted in a judgment for $220. It began:

[1] Mr and Mrs Hill and Mr and Mrs Higgins are neighbours. Their properties are respectively known as 42 and 40 Kurrawong Avenue, Hawks Nest, which is a small hamlet located on the picturesque northern shores of Port Stephens. A modest house is erected on each property. Kurrawong Avenue slopes gently from north to south in the vicinity of the properties. Number 40 is on the higher northern side and number 42 is on the lower southern side. Mr and Mrs Hill purchased number 42 in about November 2005. Mrs Higgins purchased number 40 sometime in the following year.

[2] A mostly brick dwarf retaining wall approximately one metre high and a mesh dividing fence originally ran from east to west along most of the northern side of the common boundary between the two properties. At some stage during 2006, Mr Hill became alerted to the fact that the double brick section of the retaining wall had deteriorated and had developed a slight lean, so that it was to some extent encroaching onto and over his property

[3] It was not long after this that relations between the two couples became very strained indeed. … Surveyors and engineers were soon marshalled on both sides to provide advice and reports on all manner of potential issues arising from these unfortunate circumstances.

[4] It goes without saying that it was not long before legal proceedings were commenced…….

[7] At the end of the second day, and with this very unfortunate state of affairs in mind, it became apparent to me that some different approach to the resolution of the proceedings was called for that was unconstrained by the traditional litigious model. As far as I could determine, both parties were in furious agreement that the retaining wall had to be removed but they could not agree, whether from an engineering, aesthetic or financial standpoint, about what if anything should replace it….

You can read the rest for yourselves and if you’re interested in some more Lord Denning judgments, have a look at: Thornton v Shoe Lane ParkingLewis v AveraySpartan Steel v MartinJarvis v Swan ToursJackson v Horizon HolidaysMiller v JacksonLamb v Camden LBCGeorge Mitchell v Finney Lock Seeds

The photograph was taken by Sydney based, documentary photographer, Bettina Cutler.

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