Stilgoe v Llowarch [2005] NSWSC 520

Stilgoe v Llowarch [2005] NSWSC 520

There was no evidence before the Board of a binding legal agreement falling within s26 of the Act; the alleged agreement was not properly pressed as an issue below, and in any event, the material did not support a finding of a binding contract. The Court, being appellate in function, would not permit fresh argument or evidence. Therefore, no error of law was demonstrated and the appeal fails for lack of merit, and also should not be permitted out of time.

Parties
Plaintiff: Bernard Stilgoe; Plaintiff: Susan Stilgoe; First Defendant: Greg Llowarch; Second Defendant: Local Land Board of New South Wales, Lands Division of Grafton
Jurisdiction
Australia
Judgment Date
06 June 2005
Procedural Posture
Appeal / Judgment on Appeal and Application for Extension of Time
Outcome
The summons is dismissed; the plaintiffs are to pay the costs of the summons.
Legal Topics
Dividing Fences, Appeals From Local Land Board, Effect of S26 Dividing Fences Act 1991, Extension of Time to Appeal
Administrative Law Property Law Dividing Fences Appeals From Local Land Board Effect of S26 Dividing Fences Act 1991 Extension of Time to Appeal

Case Brief

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Parties

Bernard Stilgoe

Plaintiff

Susan Stilgoe

Plaintiff

Greg Llowarch

First Defendant

Local Land Board of New South Wales, Lands Division of Grafton

Second Defendant

Procedural Posture

Appeal / Judgment on Appeal and Application for Extension of Time

Legal Issues

  1. 1 Whether Local Land Board erred in law by not giving effect to a prior agreement about fencing under s26 of the Dividing Fences Act 1991
  2. 2 Whether appeal should be allowed out of time

Ratio Decidendi

There was no evidence before the Board of a binding legal agreement falling within s26 of the Act; the alleged agreement was not properly pressed as an issue below, and in any event, the material did not support a finding of a binding contract. The Court, being appellate in function, would not permit fresh argument or evidence. Therefore, no error of law was demonstrated and the appeal fails for lack of merit, and also should not be permitted out of time.

Court Disposition

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

Orders

  • The summons is dismissed.
  • The plaintiffs are to pay the costs of the summons.