DAVID ALEXANDER BUNNEY [2026] SASC 21

Applicant: DAVID ALEXANDER BUNNEY Counsel: MR A BAILLIE - Solicitor: EZRA LEGAL Respondent: JEFFREY FRANCIS TRAHAIR In Person Hearing Date/s: 10/12/2024, 28/01/2025 File No/s: CIV-23-011266 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. BUNNEY v TRAHAIR [2026] SASC 21 Judgment of the Honourable Chief Justice Kourakis 20 February 2026 REAL PROPERTY - BOUNDARIES OF LAND AND FENCING - ENCROACHMENT OF BUILDINGS AND PARTY WALLS REAL PROPERTY - BOUNDARIES OF LAND AND FENCING - ENCROACHMENT OF BUILDINGS AND PARTY WALLS - POWER TO GRANT RELIEF REAL PROPERTY - BOUNDARIES OF LAND AND FENCING - FENCES AND FENCING - ADJOINING LAND The applicant seeks an order pursuant to s 4(2)(c) of the Encroachments Act 1944 (SA) that the respondent remove besser-block brick walls from a portion of the applicant’s land to the north of the boundary between their two properties. In the alternative, the applicant seeks an order transferring that portion of the encroached land enclosed by the walls to the respondent in return for compensation pursuant to s 4(2)(a) of the Encroachments Act. In 1997, the applicant purchased land along with a former roadway, which has now been subsequently incorporated into the land, that extended westward from the applicant’s land running along the rear boundary of a number of properties, including the premises of the respondent. The besser-block brick walls standing on the former roadway land once formed part of a building, likely a factory or workshop, which straddled both the applicant’s and respondent’s land. The respondent has access and exclusive enjoyment of the land bounded by the three walls including the former roadway, in which he has cultivated a garden and established a chicken coup, while the applicant has been denied the enjoyment of land within that walled enclosure. Held, ordering the severance of the walls by the respondent: 1. The respondent is to bear the cost of severing the encroaching walls and of reinforcements to the walls on his land, reflecting the respondent’s choice to preserve the amenity of the walled garden. The respondent is responsible for the sequencing of the works and three months is allocated for completion of the works. The applicant is to bear the cost of the removal of the walls on his land: [73]-[74]. -- 1 of 24 -- 2. The terms “encroaching owner” and “adjacent owner” in the Encroachments Act operate as drafting devices which do not, of themselves, imply any responsibility for the creation of, or ownership in, the encroachment. Consistently with the ordinary meaning of the word “encroach”, and the application of the Encroachments Act to owners who are often distant successors in title to the owner who constructed the encroachment, the identification of a neighbour as the encroaching owner and the other as the adjacent owner will, for all practical purposes, be determined by who brings the application and the orders sought: [14] 3. Where there is no direct evidence proving that an encroachment was intentional or negligent, the court may infer negligence from the size and nature of the building and the scale of the encroachment. If the distance of the encroachment exceeds what can reasonably be regarded as an acceptable range of measurement error for the marking of boundaries for a building of that kind, the encroachment may be properly characterised as negligent: [16] 4. The highest and best use of the encroached upon land will be its use to one or other of the adjoining land owners. To those owners, its value will approximate the average per square metre value of the land with which it is amalgamated. Whether or not that value would be discounted or attract a premium would depend upon the level of interest between those owners: [36] 5. Evidence of psychological condition, mental heath, or wellbeing is not a discretionary consideration within the jurisdiction conferred pursuant to the Encroachments Act, merely because of the psychological effects an order of this Court may have upon one or other of the owners of the land over which there is an encroachment. The purpose of the jurisdiction is to provide relief where an encroachment interferes with an owner’s land and their rights of use and enjoyment. The paramount consideration is a just resolution of competing property interests: [38] Encroachments Act 1944 (SA) ss 2, 4(1), 4(2), 4(3), 5(1), 5(2), 54(2); Evidence Act 1929 (SA) ss 34C, 34C(2), 52, 53; Fences Act 1975 (SA); Limitation of Actions Act 1936 (SA), referred to. Bunney v South Australia (2000) 77 SASR 319, applied. Clarke v Wilkie (1977) 17 SASR 134; Tallon v Proprietors of Metropolitan Towers Building Units Plan No 5157 [1997] 1 Qd R 102, discussed. Hogarth v Karp (2013) 118 SASR 44, considered. -- 2 of 24 -- BUNNEY v TRAHAIR [2026] SASC 21 Civil 1 KOURAKIS CJ: By claim filed on 5 October 2023, the applicant, Mr Bunney, seeks an order pursuant to s 4(2)(c) of the Encroachments Act 1944 (SA) (‘the Act’) that the respondent, Dr Trahair, remove besser-block brick walls from a portion of his land to the north of the boundary between their properties. Mr Bunney purchased his residence on Penfold Road at Magill in 1997 along with land, which once formed a roadway, on the southern boundary of his residence. The former roadway extends westwards from his residence running along the rear boundary fences of a number of properties, including Dr Trahair’s premises, until it reaches the walled boundary of the Norwood High School at its western end. I will refer to that strip of land as the “former roadway”. Mr Bunney’s residence and the former roadway land have been amalgamated into a single title which comprises allotment 1, on the northern side of the former roadway and allotments 507, 508 and 509 of the former roadway itself. I attach as appendix A to this judgment a copy of the deposited plan. 2 Dr Trahair is the owner of land on The Parade at Magill in which he resides (Dr Trahair’s premises) shown as allotment 513 on the deposited plan in Appendix A. I attach as appendix B to this judgment a copy of the identification survey plan of the encroachment, which I describe below. 3 The walls standing on the former roadway once formed part of a building, probably a factory or workshop, which straddled both Mr Bunney’s and Dr Trahair’s land. All that remains of the building are four, three metre high, walls (the walls). Two of the walls run in a north-south direction and stand on both Dr Trahair’s premises and Mr Bunney’s land. I will refer to them as the eastern and western walls. The eastern wall is situated about 0.26 metres inside the eastern boundary. The western wall sits on the western boundary. The third wall runs between the eastern and western walls in an east-west direction and is situated solely on the former roadway just north of its boundary with Dr Trahair’s land. I will refer to it as the northern wall. 4 The boundary between the eastern and western boundary, Dr Trahair’s northern boundary, is 15.24 metres long. The northern wall runs 14.98 metres, parallel to that boundary. At its western end, it extends 0.78 metres north of the boundary between the two walls, and 0.90 metres at its eastern end. It is about 0.33 metres thick. The area so enclosed by the wall is about 12.80 square metres. The dimensions of the walls and the enclosed area are not in dispute. 5 Dr Trahair has access to the land bounded by the three walls, including the former roadway. However, Mr Bunney is denied the enjoyment of his land within that enclosure because the walls are 3 metres high and because he does not have access to Dr Trahair’s back yard. Dr Trahair has therefore enjoyed the exclusive -- 3 of 24 -- [2026] SASC 21 Kourakis CJ 2 use of the enclosed land and has a cultivated garden within the walls. In one corner of that walled garden, Dr Trahair keeps a chicken coop. 6 In the alternative to an order that the walls be removed, Mr Bunney seeks orders transferring that portion of the former roadway enclosed by the walls to Dr Trahair in return for a compensatory payment to him pursuant to s 4(2)(a) of the Act. 7 Mr Bunney’s claim, as filed, alleged that the encroachment is approximately 15.24 metres wide from east to west, and some 2.92 metres deep to the north of the true boundary line, an area of approximately 44 square metres. There is a freestanding 1.2 metres high garden wall a little to the north of the northern wall which may explain why the statement of claim alleges that the encroachment extends over the entirety of Mr Bunney’s land to the north of the boundary with Dr Trahair’s land. On the other hand, it may well be that Mr Bunney appreciated that if only the enclosed land was transferred the remaining strip of land would have little value. Be that as it may, the garden wall does not form part of the northern wall and is not connected to what remains of the building in any way and is therefore not an encroachment. 8 It is not surprising then that in written submissions filed on 10 December 2024, the day before the commencement of the trial, Mr Bunney abandoned his claim that the area of the encroachment comprised 44 square metres and accepted that it was limited to the 12.80 square metres enclosed by the walls. Mr Bunney’s opening submissions confirmed that the primary relief he sought was an order requiring Dr Trahair to remove the walls and that a transfer of the enclosed land was sought only in the alternative. 9 Dr Trahair has not been represented at any stage in the proceedings. It is difficult to characterise Dr Trahair’s defence in strictly legal terms. It suffices to say that, broadly speaking, he contends that: • he is very emotionally attached to the walled garden and no order should be made under the Act which would disturb Dr Trahair’s enjoyment of the walled garden; • the encroachment is trivial and does not cause any significant loss or disadvantage to Mr Bunney; • Mr Bunney purchased the former roadway, and extinguished the right of ways over it, to exploit a commercial opportunity to sell portions of it to adjoining land owners; • the northern wall should be regarded as no more than the fence dividing his premises from the former roadway; -- 4 of 24 -- [2026] SASC 21 Kourakis CJ 3 • the encroachment was limited to the land on which the eastern and western walls stood and not the land bounded by them and the northern wall and that any compensation should be limited to the value of the lands on which they stood; • he did not wish, nor could he afford, to pay three times the value of the enclosed land; • Mr Bunney’s delay (‘laches’) in bringing the claim disentitles him from any relief. 10 After the completion of the oral hearing, and after the filing of written closing submissions, Dr Trahair provided to Mr Bunney’s solicitors a quote dated 17 February 2025 for severing the eastern walls at the boundary and reinforcing the length of those walls left standing on Dr Trahair’s premises. After receiving that quote Mr Bunney proposed that if Dr Trahair were ordered to sever the walls in that way, he would remove, at his own cost, the walls remaining on his land. 11 For the reasons which follow, I find that severing the wall is the most practical and cost effective means of removing the encroachment in a way which fairly balances the competing interests and I will so order. The Encroachments Act 12 The Act relevantly provides: 2—Interpretation In this Act, unless the context otherwise requires or some other meaning is clearly intended— … building means a substantial building of a permanent character and includes a wall; … encroaching owner means the owner of the land contiguous to the boundary beyond which an encroachment extends; encroachment means encroachment by a building, and includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil; … 4—Application to court in respect of encroachments (1) Either an adjacent owner or an encroaching owner may apply to the court for relief under this Act in respect of any encroachment. (2) On the application the court may make such orders as it deems just with respect to— -- 5 of 24 -- [2026] SASC 21 Kourakis CJ 4 (a) the payment of compensation to the adjacent owner; (b) the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to him of any estate or interest therein, or any easement, right, or privilege in relation thereto; (c) the removal of the encroachment. (3) The court may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters— (a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be; (b) the situation and value of the subject land, and the nature and extent of the encroachment; (c) the character of the encroaching building, and the purposes for which it may be used; (d) the loss and damage which has been or will be incurred by the adjacent owner; (e) the loss and damage which would be incurred by the encroaching owner if he were required to remove the encroachment; (f) the circumstances in which the encroachment was made. (4) This section applies to encroachments made either before or after the commencement of this Act. 5—Compensation (1) The minimum compensation to be paid to the adjacent owner in respect of any conveyance, transfer, lease, or grant to the encroaching owner shall, if the encroaching owner satisfies the court that the encroachment was not intentional, and did not arise from negligence, be the unimproved capital value of the subject land, and in any other case three times such unimproved capital value. (2) In determining whether the compensation shall exceed the minimum, and if so, by what amount, the court shall have regard to— (a) the value, whether improved or unimproved, of the subject land to the adjacent owner; (b) the loss and damage which has been or will be incurred by the adjacent owner through the encroachment and through the orders proposed to be made in favour of the encroaching owner; (c) the circumstances in which the encroachment was made. 13 I observe at the outset that the terms ‘encroaching owner’ and ‘adjacent owner’ are a drafting device and do not necessarily imply any responsibility for creating, or ownership of, the encroachment. By reason of the statutory definitions of encroachment and encroaching owner, the ordinary meaning of the word -- 6 of 24 -- [2026] SASC 21 Kourakis CJ 5 encroach, and the application of the Act to owners who are the, often distant, successors in title to the owner who constructed the encroachment, which neighbour is the encroaching, and which is the adjacent owner, will, for all practical purposes, be determined by who brings the application and the orders sought by that application. 14 The point I am making may be illustrated by postulating a shelter-shed or pavilion constructed consensually by the predecessors in title to two neighbours, A and B. Neighbour A might bring an application for an order that B remove the encroachment. Alternatively, A may bring an application that B transfer that part of B’s land on which the structure stands to A, or that A transfer the part of A’s land on which the structure stands to B. When bringing an application for removal of the structure A might properly be described as an adjacent owner. So too if A brings an application that the land on which the structure stands be transferred to his or her neighbour, B in return for compensation pursuant to s 5 of the Act. On the other hand, if A brings an application seeking an order that B transfer the land on which the shelter-shed or pavilion stands to him or her, accompanied by an offer that A pay compensation, A is properly described as the encroaching owner. Background 15 Mr Bunney was aware that the walls straddled the boundary between the former roadway when he purchased the land. The walls are likely to have been built by an earlier owner of Dr Trahair’s land, but it is not necessary to determine who constructed the building over both parcels of land. 16 Importantly, however, there is no evidence from which it can be inferred that the encroachment was neither intentional nor negligent. Indeed, the only evidence, the distance beyond the northern boundary at which the northern wall stands and the size and nature of the buildings suggest that the encroachment was at least negligent. The distance exceeds the acceptable range of measurement error for marking out the boundaries of a building of this kind. Accordingly, should there be a transfer, the minimum compensation payable for the land enclosed by the walls is three times its unimproved capital value. 17 The history so far as it is known of the former roadway is set out in Bunney v South Australia.1 Between 1999 and 2001, Mr Bunney successfully applied for the extinguishment of a right of way over the former roadway in favour of an elderly citizens’ home. After the decision in Bunney v South Australia,2 a right of way in favour of the Minister for Education was also extinguished. On 25 July 2002, Mr Bunney applied to the Registrar-General to extinguish all remaining rights of way over the former private road, save that he retained the right of way pertaining to his residential premises. They were extinguished by registration in 2004. 1 (2000) 77 SASR 319 (Bunney v South Australia). 2 (2000) 77 SASR 319. -- 7 of 24 -- [2026] SASC 21 Kourakis CJ 6 18 It can be seen from the deposited plan in Appendix A that allotments 510, 511, 513 and 24 now extend over the former roadway. Mr Bunney contracted to sell those portions of the former roadway to the owners of the adjacent allotments but maintained his right of way so that he could continue to access the now ‘land locked’ portions of the former roadway. The parcels were sold on the following dates and for the following amounts: • Parcel 24, $15,000 on 3 March 2006; • Parcel 510, $20,000 on 3 March 2008; • Parcel 511, $18,000 on 3 March 2008; and • Parcel 513, $15,000 on 4 March 2008. 19 Dr Trahair contracted to purchase his premises on 16 December 2005 from Mr and Mrs Wessel and settlement occurred on 23 January 2006. Mr Bunney had served a notice pursuant to the Fences Act 1975 (SA) (‘Fences Act’) on Mr and Mrs Wessel on 26 November 2005. Mr and Mrs Wessel had responded to that notice that the wall served adequately as a fence but made an offer to purchase the land for a small sum of $61.50. When he purchased the land from Mr and Mrs Wessel, Dr Trahair knew that: 7.1 There being a Right of Way to the north of the property indicated on the title, and identification survey This is the Right of Way identified in (1, above), and so, in the particulars of the current claim, and also in the particulars of the expert Valuer’s report (DP26) 7.2 A Fencing Order served by the Applicant on the then owners of the property (26/11/2005) 7.3 A form 3 response to Fencing Order (1/12/2005) 7.4 A handwritten added note in the contract of sale (page 2 of contract) detailing a possible encroachment onto the Right of Way. Correspondence between neighbours 20 Mr Bunney deposed that after Dr Trahair purchased his premises, he wrote to Dr Trahair about the wall in 2006 and 2011. He deposed that he has had no copy, of any kind, of the 2006 letter and only an electronic copy of the 2011 letter. A hard copy printout of the electronic document was received as part of the tender book. In the 2011 letter, Mr Bunney identified the relevant survey markers and informed Dr Trahair that the time had come to remove the encroaching structures or arrange to meet him in the ‘immediate future’ to negotiate a purchase of the encroachment. 21 On 15 November 2021, Mr Bunney served a fencing notice on Dr Trahair with a covering letter which referred to previous attempts to resolve the encroachment. He indicated that he intended to sell his property and offered to -- 8 of 24 -- [2026] SASC 21 Kourakis CJ 7 sell the parcel of land comprising 45 square metres which lay to the north of the boundary to Dr Trahair. He noted that if Dr Trahair did not purchase the land, they could negotiate the construction of a fence on the true boundary. He warned that much of the wall would need to be demolished. 22 Dr Trahair responded on 13 December 2021. He enclosed with his letter a notice of objection to Mr Bunney’s notice under the Fences Act. He asserted that the Act governed their circumstances. He informed Mr Bunney that he did not wish to demolish the rear wall, nor did he wish to purchase the land. 23 On 17 December 2021, Mr Bunney wrote again to Dr Trahair. He complained that Dr Trahair was ignoring his attempts to resolve the dispute. He pointed out that in circumstances where the encroachment was intentional or negligent, the minimum cost of a transfer of land under the Act was three times its value. He warned that a sale of his land to a third party would include the portion on Dr Trahair’s side of the northern wall. 24 Dr Trahair responded on 4 January 2022 stating that he did not wish to purchase the land and that he would defend his reasonable intention to retain the northern wall as it is. Nonetheless, he enquired of Mr Bunney what compensation he might require for ‘the .7 metre encroachment’. He concluded by suggesting that they should both avoid ongoing debates and arguments and that if the matter could not be resolved between them, Dr Trahair indicated that he was “keen to schedule assistance via community mediation’. 25 Mr Bunney responded on 17 February 2022. He confirmed that the wall extended about .8 metres onto the former roadway. However, he referred to significant other footings and assorted masonry on his property before asserting that: It really isn’t practical to transfer .8 of a metre to you and leave the remainder so if we are to negotiate a resolution to the issue it would need to be on the basis of all of the land currently fenced into your property being transferred to you… He again referred to the minimum payment amount payable in the case of intentional or negligent encroachment. Mr Bunney informed Dr Trahair that he had a discussion with a third party about the sale of the property and disclosed that his ‘sense’ was that the third party intended to amalgamate the land with an adjacent property which he proposed to purchase. 26 On 9 March 2022, Mr Bunney again wrote to Dr Trahair complaining that he had not received a response to his email of 17 February 2022. In that letter, he mentioned that he had raised the matter on several occasions, including as far back as 2006 and 2011. On 10 March 2022, Dr Trahair acknowledged receipt of the email prompting Mr Bunney to write again on 19 March complaining that he had not received a reply. -- 9 of 24 -- [2026] SASC 21 Kourakis CJ 8 27 On 20 March 2022, Dr Trahair replied that his research into what was a complex issue was taking some time. He informed Mr Bunney that he was still awaiting two professional opinions. However, he again asserted that he had no interest in owning the land and that he did not see the need for anything to be done. 28 There was some further communication, but the impasse remained. Expert Evidence 29 The Court received without opposition a valuation, tendered by Mr Bunney, of that part of the former roadway which abuts Dr Trahair’s premises. The valuer, Mr Chaney, valued the approximately 45 square metres of land at $49,500 as of May 2023 based on a per square metre valuation of $1,100. That valuation was premised on the merger of the subject land with Dr Trahair’s premises. 30 Mr Chaney acknowledged that the former roadway was land locked, having no road frontage, and for that reason would have limited appeal on the open market. He accepted that only adjoining landowners would have any practical use for the land. Mr Chaney’s valuation method was to assess the added value to Dr Trahair’s premises if the parcels were merged on the assumption that the land was vacant and unencumbered. 31 An Addendum report by Mr Chaney dated 16 January 2025 was tendered with the Valuation Report. The Addendum provided a valuation of the encroaching area presently in dispute. Mr Chaney valued the 12.80 square metres at $17,280. 32 Dr Trahair contended that the land should be valued on the basis of such use as it might have as a landlocked parcel of land. Dr Trahair tendered a valuation report by Mr Byrne of CRBE Residential Valuations Pty Ltd. Counsel for Mr Bunney consented to the admission of the report into evidence without the need to call Mr Byrne for cross-examination. Mr Byrne considered that the enclosed area of 12.80 square metres had a limited buyer pool and could not be constructed upon due to the existing right of way. He considered it was of negligible value in the broader market. He valued the 12.80 square metres at $1,650. 33 The enclosed land is not presently a landlocked parcel of land. It is amalgamated with Mr Bunney’s residence and accessible by his right of way over the former roadway land. If the enclosed land were valued as part of the parcel comprising Mr Bunney’s title, it would not be landlocked and its value would be determined by reference to the value of Mr Bunney’s land overall, although probably at a lesser value because the land is not contiguous. 34 More importantly, as presently disposed, the land is accessible from, and substantially contributes to, the amenity of Dr Trahair’s backyard. Its present use is not as a landlocked strip of land. -- 10 of 24 -- [2026] SASC 21 Kourakis CJ 9 35 The Act necessarily requires a counterfactual valuation because an encroachment by definition is not readily accessible to the adjacent owner and if valued as a separate parcel is landlocked. Moreover, if the land is to be transferred it will be by court order to the encroaching owner and not to a purchaser on the open market. 36 The highest and best use of encroached upon land will be its use to one or other of the adjoining landowners. To those owners its value will approximate the average per square metre value of the land with which it is amalgamated. Whether or not that value would be discounted, or attract a premium, would depend on the level of interest of those owners. 37 I am satisfied that Mr Chaney’s methodology is appropriate. The manifest purpose of the Act is to ensure that the encroaching owner who takes the benefit of the encroachment pays an amount which reflects the value of its accretion. The minimum payment provided for by s 5(1) of the Act would give the encroaching owner a windfall benefit if that method were not adopted. Moreover, the purpose of the obligation imposed by s 5(1) of the Act to pay three times the value, unless it is shown that the encroachment was neither intentional nor negligent. 38 Dr Trahair sought to rely on medical reports regarding his psychological condition. Counsel for Mr Bunney objected to the Court receiving these reports, submitting that they were not relevant. On 28 January 2025, during the second day of trial, I ruled that the expert reports were inadmissible.3 Even if I were to accept that Dr Trahair suffers from depression and anxiety and consider that retaining the walled garden was important for his mental health and wellbeing, I have no discretion to decline to exercise the jurisdiction conferred on this Court by the Act because of the psychological effects an order the Court is empowered to make on one or other of the occupants of the land over which the encroachment extends. The purpose of the jurisdiction is to provide relief when an encroachment denies an owner of land the rights of enjoyment which is inherent in his or her owner. Exercise of the jurisdiction will often disappoint either the encroaching or adjacent owner and sometimes both of them. However, the paramount consideration is a just resolution of their respective property interests. Other than, perhaps, in respect of the timing of orders, or in the most minor of encroachments, the wellbeing of one or other of the owners is of no, or little weight. Cost of Severing/Removing the Wall 39 A quote for the removal of the walls from A Plus Property Services SA was received into evidence as part of the tender book. It estimated the cost of removal to be $16,000 to $18,000 plus GST. The quotation included demolition and disposal of the boundary wall including the removal of the debris, dumping, skip, 3 Transcript of Proceedings, Bunney v Trahair (Supreme Court of South Australia, CIV-23-011266, Kourakis CJ, 28 January 2025) 148-149. -- 11 of 24 -- [2026] SASC 21 Kourakis CJ 10 and labour fees. It assumed clear and safe access on the northern side for excavation of the footings. 40 During the period after the completion of the trial and whilst awaiting further written submissions from the parties, Dr Trahair forwarded to Mr Bunney’s legal practitioners a quote for severing the wall and reinforcing the remaining structure dated 17 February 2025. The quote was attached to Mr Bunney’s written submission, filed on 24 March 2025. The quote from A Plus Property Services SA describes the scope of works as: Mark and cut the brick wall cleanly at the boundary end. Remove debris and prepare edges for new construction. Excavate and pour footings, tying them into the existing foundation. Install steel reinforcement, including rods and starter bars. Brick lay new pillars on both left and right sides. Core-fill pillars with concrete for strength. The quoted price is $12,000 plus GST. 41 If admitted, the quote is evidence that severing the walls is feasible and at a cost which makes it the most practicable and cost-effective resolution of the encroachment. The provenance and reliability of the quote is not an issue because it was procured by Dr Trahair from A Plus Property Services SA. I will admit it as evidence of its contents pursuant to ss 34C(2), 52 and 53 of the Evidence Act 1929 (SA). I do so because: • the document is apparently reliable; • Dr Trahair relied on the quote of A Plus Property Services SA to prove the cost of removal of the walls; • in his written submission of 11 February 2025 Dr Trahair relied on information to the same effect as the quotes which he said he had received from A Plus Property Services SA; • the quote is a business record; • Dr Trahair was asked to provide information on severing the walls; and • unnecessary delay and expense would be caused by calling the author. Closing submissions – 11 February 2025 42 On 28 January 2025, I gave a direction that Mr Bunney and Dr Trahair make further submissions on whether I should order: 1. That the wall be removed by the respondent using a qualified and properly licenced builder, and, if so whether the respondent ought to solely bear the costs of that removal; -- 12 of 24 -- [2026] SASC 21 Kourakis CJ 11 2. That the wall be severed from the remaining structure by the respondent; or 3. That an engineer be appointed by the Court to prepare the engineer’s report and if so who ought to bear the costs of preparation of that report. 43 Both Dr Trahair and Mr Bunney filed submissions on 11 February 2025. In his written submission of 11 February 2025, Dr Trahair contended that the northern wall is not an encroachment as it is entirely on Mr Bunney’s land. In respect of the eastern and western walls, he contended that the encroachment is limited to the footprint of the walls themselves being an area of 0.336 square metres. 44 That contention must be rejected. It deconstructs the remains of the building into its structural elements. It fails to recognise that the walls still form a complete, and imposing, enclosure which effectively excludes Mr Bunney from any enjoyment of that part of his land within it. 45 Dr Trahair’s reliance on the decisions of Clarke v Wilkie4 and Hogarth v Karp5 and Tallon v Proprietors of Metropolitan Towers Building Units Plan No 51576 is misplaced. Mr Bunney’s counsel’s submissions in response correctly distinguished Clarke v Wilkie7 but nonetheless relied on the observations of Wells J to support the contention that the whole area enclosed by the walls is an encroachment. In Clarke v Wilkie, Wells J held that a concrete driveway constituted a building and an encroachment of the land over which it was laid. Justice Wells considered the meaning of the word building more generally and held that the references to building and walls in the definitions were ‘species of the one genus’ being one which comprised all substantial and enduring fixtures. His Honour expressly contemplated that ‘buildings with walls (whether with or without a roof)’8 may constitute an encroachment. Moreover, Mr Bunney’s counsel correctly pointed out that even though Hogarth v Karp9 held that the encroachment constituted by a retaining wall was its footprint in that case no additional land was enclosed within the wall’s structure. Finally, in Tallon v Proprietors of Metropolitan Towers Building Units Plan No 5157,10 an order for moving a boundary beyond the actual area of the encroachment, so as to allow some space between the encroaching building and the new boundary, was set aside. Plainly the order which was set aside did more than remedy the encroachment itself. It transferred land to the encroaching owner beyond that which was necessary to remedy the encroachment. 46 Dr Trahair contended that the order sought by Mr Bunney for the removal of .78 and .9 metres of the western and eastern end walls respectively is unnecessary 4 (1977) 17 SASR 134. 5 [2013] SASC 159. 6 [1997] 1 Qd R 102. 7 (1977) 17 SASR 134. 8 Clarke v Wilkie (1977) 17 SASR 134 at 137-138. 9 (2013) 118 SASR 44. 10 [1997] 1 Qd R 102 (Queensland Court of Appeal) -- 13 of 24 -- [2026] SASC 21 Kourakis CJ 12 and impractical. He submitted that a saw cut along the boundary line would effectively sever the encroaching sections while leaving the freestanding northern wall intact. Dr Trahair acknowledged that the walls would require bracing to prevent their collapse. In that respect Dr Trahair’s submission informed the court that A Plus Property Services SA, the licensed builder who had provided the quote for the removal of the walls, and who was experienced in demolition, had inspected the walls and had confirmed that it was a relatively simple task to sever the walls and reinforce them on Dr Trahair’s side. However no written quote was attached to that submission. 47 Dr Trahair contended that this Court should make an order pursuant to s 4 of the Fences Act for the construction of a new fence along the boundary between his premises and the former roadway. 48 Alternatively, Dr Trahair contended that, if he were to take a transfer of the land Mr Bunney should bear the costs of removing any existing rights of way. Dr Trahair also submitted that imposing on him an obligation to pay three times the value of the enclosed land if he could not prove that one of his predecessors in title did not encroach on the land intentionally or negligently, casts on him an impossible burden from which he should be relieved. Dr Trahair characterised the Act as one which punishes him for the historical actions of his predecessors. I accept that the practical impediments in proving that the building of the walls beyond the boundary was neither negligent nor intentional are substantial. However, the text of s 5 of the Act is intractable. Moreover, the manifest legal policy reason for the default rule is to discourage encroachment as a means of forcing a sale by changing the facts on the ground. Purchasers of land which have structures which encroach on neighbouring land have the means to protect themselves. They may, like Dr Trahair, receive express notice of the encroachment. Alternatively, with some care, the existence of such encroachment can be discovered. A purchaser may then adjust an offer to purchase the land to allow for the contingency that orders may be made under the Act which will have the purchaser paying dearly for the encroachment. 49 Alternatively, the purchaser of land which encroaches onto another’s may cause the encroachments to be removed if it is practical and safe to do so. 50 In the absence of an engineering report or building quote, and because their submissions were filed on the same day, Mr Bunney’s written submissions of 11 February 2025 argued for the appointment of an engineer to report on: • whether the walls could be safely and effectively severed; • the scope of the work; and • a cost estimate for severing the wall and to ensure that the remaining walls were safe and structurally sound. -- 14 of 24 -- [2026] SASC 21 Kourakis CJ 13 51 Mr Bunney’s counsel submitted that even though the first quote obtained from A Plus Property Services SA for the removal of the walls did not mention any risk to the remaining structure if the northern wall was removed, it was not clear whether that risk had been carefully considered. He argued too that there was also uncertainty in whether the quote for the removal included the reinforcement of the remaining wall. 52 Mr Bunney submitted that an engineer’s report had the potential to materially alter the discretionary factors that informed the final relief. If an engineer were to report that it is possible to safely sever the wall from the remaining structure, such that Mr Bunney could remove the freestanding walls on his land himself, the appropriate relief would be that Dr Trahair sever the wall solely at his cost, leaving the Mr Bunney free to remove the wall himself. 53 On the other hand, if the engineer were to report that the wall could not be safely removed without removal of the remaining structure, or significant incidental works on the remaining structure, those costs may exceed the compensation payable in respect of s 5(1) of the Act. Mr Bunney’s counsel made the point that Dr Trahair was asked to investigate those issues and obtain quotes on 10 December 2024 but that he had not done so. At the conclusion of day one of the trial I requested either or both of the parties provide quotes for the removal of the wall and/or the support that would be required. The parties were ordered to serve upon one another any quotations procured regarding the cost of any demolitions of the wall traversing their properties by 5:00 pm on Wednesday 15 January 2025. 54 In summary, Mr Bunney’s counsel submitted that an engineer’s report should be obtained because of: • the combination of the uncertainty over the costs which may be incurred in order to safely remove the wall; • Dr Trahair’s indication that he had limited financial means; and • uncertainty as to whether Dr Trahair could in fact remove the wall safely. 55 Mr Bunney submitted that, accepting that the Court was empowered by s 54(2) of the Act to make an order that he contribute to the costs of severance, such orders should only rarely be made if the encroaching owner was aware of the encroachment when the property was purchased. That submission states the principle too strongly. The circumstances of the encroachments will vary greatly and, as I earlier observed, the characterisation of one neighbour as the encroaching owner for the purpose of the Act does not mean that he or she carries any greater responsibility for the problems caused by the encroachment. -- 15 of 24 -- [2026] SASC 21 Kourakis CJ 14 56 In the interests of progressing the matter, Mr Bunney offered to consent to an order that the costs of engaging an engineer be equally shared in the first instance but subject to the following conditions: 1. If the engineer’s report tips the balance in favour of a transfer of land, rather than removal/severance of the wall, Mr Bunney should not be burdened with the costs of the engineer’s report. Similarly, if (for some other reason) the final relief does not accord with or reflect the engineer’s report, Mr Bunney ought not to have to bear the costs of the preparation of the report. In either case Mr Bunney’s share of the costs ought to be reimbursed by Dr Trahair. 2. If the wall is removed, in accordance with the engineer’s report, and if Mr Bunney is ordered to contribute to the costs of removal, Mr Bunney’s costs of the engineer’s report ought to be taken into account in the Court’s assessment of any such contribution. 3. If the wall is merely severed and if the applicant is not otherwise ordered to contribute to the costs of the severance, the applicant is content to bear his one-half share of the costs of the engineer’s report. Further Submissions – March 2025 57 On 14 March 2025, I directed the parties to file submissions on the question of final relief and costs. It was necessary to make that order to allow Mr Bunney to address the question of severing the walls and their reinforcements raised by Dr Trahair in his submissions of 11 February 2025. 58 Mr Bunney submitted that it was no longer necessary to obtain an engineer’s report having regard to the quote from A Plus Property Services SA. Mr Bunney accepted that the severing of the walls was cost effective in comparison to the earlier quote for removal of the walls. He also submitted that those costs were well below the compensation land which might be awarded on a transfer of the enclosed land. He contended that the appropriate final relief is an order that Dr Trahair proceed with the scope of works set out in the quote. 59 Mr Bunney submitted that he should not pay the costs of the severing of the wall. Again, he relied on Dr Trahair’s knowledge of the encroachment at the time he purchased his premises. Mr Bunney contended that if the severing of the wall were ordered that the Court was not empowered to order him to remove the wall which remains on his own land. Nonetheless he submitted that his willingness to remove the walls which stood on his land at his own cost, after they were severed, should be treated as a reasonable contribution towards remedying the encroachment. I accept both submissions: the former because once severed there is no encroachment, and the latter because it is just that each adjoining owner take responsibility for those elements of the severed structure which stand on their respective premises. -- 16 of 24 -- [2026] SASC 21 Kourakis CJ 15 60 Mr Bunney submitted in the absence of a specific fencing proposal, this Court should not exercise the jurisdiction under the Fences Act 1975 (SA). 61 Mr Bunney maintained his position that in the absence of evidence about the intention and knowledge of Dr Trahair’s predecessor in title who constructed the wall, that compensation in the order of $49,920 to $51,840 was payable for a transfer of the land enclosed by the walls. 62 Mr Bunney submitted that the Court should make the following orders: 1. Within two months the respondent completes the scope of work set out in the quote from A Plus Property Services SA of 17 February 2025 at his cost. 2. That the respondent give the applicant not less than 14 days’ written notice of the date on which the works are to occur. 3. That the applicant shall provide such access as may be reasonably required by the respondent or any licenced builder to undertake the works, provided that a request for such access is made in writing and not less than 14 days before access is required. 63 Dr Trahair repeated his contention that the encroachment was limited to the footprint of the wall and repeated the contention that the open land to the south of the wall was not an encroachment. 64 Dr Trahair maintained his position that he reasonably believed the counteroffer made by the Wessels allowed adequate compensation. 65 Dr Trahair contested Mr Bunney’s contention that he was not an innocent successor in title who was unaware of the encroachment. Dr Trahair contrasted his knowledge of the encroachment to Mr Bunney’s. 66 Mr Trahair appeared to withdraw his concession made in his submissions of 11 February 2025 that severance of the wall was possible. I set out his submissions on that issue in full below:11 The Proposal to Sever the Wall 16. One of the proposed remedies is to sever the north–south walls that extend across the northern boundary line. While it is accurate that these walls cross the boundary, they currently function as essential boundary fences. In particular, the western north–south wall forms a continuous, uninterrupted structure that serves as: • The boundary fence between the Respondent’s property and the adjoining school; and 11 Jeffrey Francis Trahair, ‘Written Submissions of Respondent FDN 51’, Submission in Bunney v Trahair, CIV-23-011266, 21 March 2025. -- 17 of 24 -- [2026] SASC 21 Kourakis CJ 16 • The boundary fence between the Applicant’s property and the school. 17. To arbitrarily sever this uniform and continuous wall makes little practical or structural sense. Doing so would likely destabilize both adjoining sections and require the construction of supporting or bracing structures on each side. This would be an unnecessary and costly exercise. If, at some point, the Applicant wishes to demolish or replace their portion of the school boundary fence, severance might become appropriate—but absent that, the proposal is disruptive and unjustified. 18. At the eastern end of the property, the north–south boundary wall projects approximately 0.9 metres over the northern boundary line, creating a very small encroachment with a physical footprint of only 0.18 square metres. While technically this may constitute an encroachment, the scale is minor and trivial, and unlikely to justify extensive demolition/bracing work. 19. Should demolition of the east–west wall be ordered, then by necessity, the wall would need to be severed at the junctions where it connects to the north–south walls due to the interlocking nature of the blockwork. 20. The Supplementary Written Submissions of the Applicant (FDN 49) discuss at length engineering reports and cost estimates. The Respondent has already submitted quotes covering: • Severance of the north–south walls; • Demolition of the east–west wall; and • Construction of supporting pillars (Respondent’s side). 21. However, clarity is required regarding which elements are strictly necessary, how they should be sequenced, and within what timeframe the works should occur. The Respondent did not seek quotes for a new boundary fence at this stage because, based on discussions with the builder, it became apparent that: • Further technical specifications would be required; • Attempting to construct a new fence adjacent to the existing wall footings— particularly involving excavation and installation of retaining structures— would be extremely difficult and likely impractical without complete removal of the existing wall. Though these building tasks may appear simple in isolation, they are significantly complicated by: • VERY restricted access to the site; • The need to work around established gardens; and • The inability to use conventional, labour-saving machinery. Out of six contractors approached by the Respondent, only one was willing to provide a quote. These types of jobs are often regarded as non-viable by highly competitive commercial contractors, which inflates costs considerably. -- 18 of 24 -- [2026] SASC 21 Kourakis CJ 17 22. Furthermore, any proposal involving access via the adjoining school property presents substantial difficulties. While the Applicant (see Affidavit, FDN 45, p. 40) assumes such access would be negotiable, the Respondent’s experience with the school principal indicates otherwise. Based on previous dealings, it is highly unlikely that access would be granted easily, and if permitted, it would likely be subject to significant restrictions, including: • Security clearances; • Supervision; • Scheduling around school hours. These conditions would likely make access through school land costly, uncertain, and administratively burdensome, further complicating any proposed severance or reconstruction. 67 Dr Trahair also objected to Mr Bunney removing the wall himself. He contended that the prospect of Mr Bunney being physically present or near his property would be a severe psychological trigger. He was also concerned by access to and intrusion upon his land and the loss of physical security and privacy. 68 On the question of compensation, he contended that an award of compensation was not mandatory. Resolving the encroachment dispute 69 The Act does not impose any time limit for bringing an action pursuant to s 4. That is understandable given the mischief which the Act addresses. Nor does the Limitation of Actions Act 1936 (SA) appear to impose an applicable time limit. Dr Trahair has not pleaded a statutory time limit but calls in aid the equitable doctrine of laches. That equitable defence can have no application to a statutory action brought under the Act. I reject Dr Trahair’s contention that Mr Bunney’s application should be dismissed for delay. 70 For the reasons explained in [13]-[14] above, Dr Trahair is the encroaching owner. I accept that Dr Trahair did not appreciate the legal significance and consequences of the walls extending beyond the boundary of his premises but he knew the facts and circumstances which brought them within the definition of an encroachment and attracted the provisions of the Act. His ignorance or mistaken belief about the possible remedies, or the reasonableness of the Wessel’s offer, do not exempt him from the statutory regime. 71 I do not accept Dr Trahair’s submission that the encroachment is “minor and trivial, and unlikely to justify extensive demolition/bracing work”. The extent of encroachment is, for the reasons I have explained, 12.80 square metres. It is all the land that is enclosed within the walls because Mr Bunney is effectively denied his property rights in respect of that land. It is much more than the footprint of the walls themselves. -- 19 of 24 -- [2026] SASC 21 Kourakis CJ 18 72 Dr Trahair’s position is that Mr Bunney should suffer the entirety of the burden of the encroachment. If no order were made under the Act, Mr Bunney would be denied the use of the enclosed land which has a value in excess of $15,000 and would be left with a narrow strip of land to its north which is of little if any value. On the other hand, for the cost of about $13,200, the walls can be severed and reinforced allowing Dr Trahair to enjoy an, admittedly smaller, walled garden and returning to Mr Bunney that which is his. It is fair and equitable that Dr Trahair bear the cost of severance and reinforcement of the walls on his premises because it is his choice to preserve the amenity of the walled garden. Moreover, Mr Bunney will be left to bear the cost of the removal of the walls on his land. On balance these considerations favour making an order that Dr Trahair sever the walls. 73 The only alternative order which may be made pursuant to the Act is to transfer the land to Dr Trahair. However, despite some equivocation, it is clear that Dr Trahair is not prepared to pay the statutory compensation for that transfer. 74 I do not accept Dr Trahair’s submission that further “clarity” is required as to how the work is to be performed. The order sought by Mr Bunney is that Dr Trahair cause the walls to be severed. The effect of that order is that Dr Trahair must take responsibility for the sequencing the works. He will have liberty to apply if Mr Bunney unreasonably fails to cooperate by allowing reasonable access or otherwise frustrates the work. 75 I will allow three months for the completion of the work. Costs 76 Mr Bunney seeks costs, in part on an indemnity basis, on the grounds that: • an order that the walls be severed is a vindication of his claim; • he attempted to resolve the dispute before proceedings were issued; • Dr Trahair’s own conduct necessitated the bringing of proceedings; • on 25 November 2024 he made an open offer to resolve his action on the basis that he would take ownership of the wall on his land, and construct a rudimentary boundary fence along the boundary of the enclosed land; • on 11 December 2024 he made another open offer to resolve his action on the basis that each party confirms their respective ownership of the walls which stand on their respective land and agree that each are free to deal with their portion of the structure as they see fit. 77 The offer of 25 November 2024 commenced with a statement of Mr Bunney’s position. It contended that the northern wall was part of a -- 20 of 24 -- [2026] SASC 21 Kourakis CJ 19 four-walled structure extending from Dr Trahair’s premises and was not ‘owned’ by Mr Bunney. It claimed that there was little doubt, but that the Court would make a finding that Dr Trahair was encroaching upon Mr Bunney’s land and that the Court would order either removal of the encroaching wall or the transfer of the enclosed land at Dr Trahair’s cost. It left open an offer of 12 November 2024 which was not set out in the letter but noted that Dr Trahair indicated he did not propose to consider that offer. The letter then set out what is described as ‘an alternative proposal’. The offer was as follows: Noting your apparent concession at yesterday’s hearing – that the area north of the true boundary, inclusive of the northern besser wall, is not land to which you are entitled – and seeking to avoid significant remediation costs being incurred by you to remove the encroachment, our client is willing to resolve the proceedings on the following basis: 1. Our client will take ownership of that portion of the besser wall that sits on his land. 2. A fence will be constructed at the true boundary, without the removal of the besser wall. Our client proposes that a rudimentary fence, being of wire or light wood construct, be constructed so as to minimise costs. Our client will bear the costs of installing that fence. 3. You agree to provide our client access to your land to construct the fence. 4. You pay to our client the sum of $20,000 in respect of our client’s legal costs within 28 days. 5. As an alternative to 4 above, our client would be willing to accept payment of the sum of $25,000 in respect of his legal costs but on deferred payment terms, including, should it be acceptable to you, upon terms that the sum of money be payable by your estate. 6. The proceedings before the Supreme Court of South Australia to be discontinued upon execution of a Deed of Settlement reflecting the above with no orders to be made. The offer was expressed to be open for seven days. 78 The offer of 25 November did not deal with the encroachment by the walls at all. It left them in place, necessitating the deferral of agreement on severing and/or removing, or possibly transferring the enclosed land, to some time in the future. The proposed wire fence strung across Dr Trahair’s walled garden to mark the boundary is emblematic of the makeshift nature of the proposal. It does not warrant a cost order on an indemnity basis. 79 The offer of 11 December 2024 proposed resolving the proceedings on the basis that each party confirms their respective ownership of the walls which stand on their land, and agrees that each are free to deal with their portion of the structure as they see fit. It was conditional on each party providing releases and discharges to the other in respect of any claims including future claims which might arise as a result of the other removing, modifying and demolishing their portion of the structure. The offer enclosed a deed which recorded the proposed terms. Pursuant -- 21 of 24 -- [2026] SASC 21 Kourakis CJ 20 to the terms of the deed, the proceedings were to be discontinued with no order as to costs. The offer did not have an expiry date. 80 The offer of 11 December 2024 approximates the orders I will make but it allows each party to act unilaterally. That is a fraught proposal. The risk of damage to the walls on Dr Trahair’s premises, which he wishes to retain, would be substantial. There would also be a risk of personal injury. That offer does not warrant a cost order on an indemnity or solicitor-client basis. 81 Dr Trahair filed his final submissions on the question of costs on 15 May 2025. Dr Trahair contended that he had always acted in good faith and disputed that there was any proper basis for shifting costs to an indemnity or solicitor-client basis. 82 Dr Trahair contended that the offer made on 25 November 2024 was confusing because it left the offer of 12 May 2024 open. 83 Dr Trahair relied on his proposal to settle the matter made on 4 January 2022. Dr Trahair contends that Mr Bunney did not constructively acknowledge or accept the proposal but instead escalated the dispute. However, Dr Trahair’s proposal that the northern wall remain in place but without Dr Trahair purchasing the enclosed land was unrealistic. The offer of mediation had little prospect of success. 84 Dr Trahair complained about Mr Bunney’s failure to amend the claim to seek a smaller area and the late concession that the encroachment was limited to the walled area, being 12.80 square metres, and of Mr Bunney’s change in solicitors in August 2024. Mr Bunney correctly responded to the complaint about the late change in solicitors, contending that it was a matter for taxation. As to the late concession on the area of the encroachment, he repeats that his primary claim was for removal of the encroachment. He observed that there was no undue delay in the proceedings which were issued on 5 October 2023 and listed for trial in December 2024. I accept those submissions. 85 Without accepting that the pre-action correspondence relied on by Dr Trahair should be taken into account on costs, Mr Bunney submitted that his extensive attempts to settle before he issued proceedings evidenced his conciliatory approach. 86 I find that both Mr Bunney and Dr Trahair fell short in their attempts to settle. Initially Mr Bunney’s focus was on negotiating a sale of all of his land to the north of the boundary. Dr Trahair’s focus was on preserving his enclosed garden at no cost. 87 I am not persuaded that there is any reason to depart from the ordinary rule that costs on a party-party basis should follow the event. -- 22 of 24 -- [2026] SASC 21 Kourakis CJ 21 Orders 88 I order as follows: 1. Within three months the respondent completes the scope of work set out in the quote from A Plus Property Services SA of 17 February 2025 at his cost. 2. That the respondent give the applicant not less than 14 days’ written notice of the date on which the works are to occur. 3. That the applicant shall provide such access as may be reasonably required by the respondent or any licenced builder to undertake the works, provided that a request for such access is made in writing and not less than 14 days before access is required. 4. The parties have liberty to apply as to order 3. 5. Dr Trahair is to pay the costs of the application on a party/party basis. Appendix A -- 23 of 24 -- [2026] SASC 21 Kourakis CJ 22 Appendix B -- 24 of 24 --