Amies v Lerve - [2014] QCATA 61

CITATION:

Amies v Lerve [2014] QCATA 061

PARTIES:	John Lowell Amies (Applicant)
V
James Melton Lerve (Respondent)

APPLICATION NUMBER:

APL233-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President

DELIVERED ON:

4 April 2014

DELIVERED AT:

Brisbane

ORDER MADE:

Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTE – DIVIDING FENCE – where the parties are owners of adjoining properties – where the applicant provided estimated cost of fencing work to the respondent – where the applicant carried out fencing work then sought contribution from the respondent – where the respondent refused to contribute – where the Tribunal dismissed the application because the applicant failed to give the respondent a valid notice to contribute – where the applicant seeks leave to appeal that decision – whether the applicant’s conduct was sufficient to amount to a valid notice – whether there was an agreement to contribute to fencing work – whether grounds for leave to appeal

PRACTICE AND PROCEDURE – EVIDENCE – OATH OR AFFIRMATION – where the Magistrate did not make the parties swear an oath or affirmation before giving evidence – where the applicant contends the Magistrate should have directed the parties to swear an oath or affirmation – where s 28 of the Queensland Civil and Administration Tribunal Act 2009 provides that the Tribunal is not bound by the rules of evidence – whether the Magistrate erred in not directing the parties to swear an oath or affirmation

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 31, s 98
Queensland Civil and Administration Tribunal Act 2009 (Qld), s 28, s 95

Dearman v Dearman (1908) 7 CLR 549, applied
Fox v Percy (2003) 214 CLR 118, applied

Chambers v Jobling (1986) 7 NSWLR 1, applied

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited
Cachia v Grech [2009] NSWCA 232, cited
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited

APPEARANCES and REPRESENTATION (if any):

The Appeal Tribunal heard and determined this matter on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Mr Amies and Mr Lerve are neighbours in far north Queensland. In November 2007, Mr Amies met with Mr Lerve to discuss fencing their common boundary. There are two boundaries between the properties: the right hand side and the rear. Mr Amies gave Mr Lerve a written quote from The Fence Shop which showed a cost of $1,650 for the right hand side and $980 for the rear. Mr Amies proceeded with the quoted fencing, expecting that Mr Lerve would pay half the cost of the right hand side fencing.
Time passed. Mr Amies suffered unfortunate personal events in 2009 which prevented him from doing anything about recovering Mr Lerve’s share…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amies v Lerve

Details

AGLC: Amies v Lerve [2014] QCATA 61
Case: [2014] QCATA 61
Decision Date: 4 April 2014

CaseChat Overview and Summary

The case of Amies v Lerve involved a dispute between adjoining property owners over a dividing fence. The applicant, Amies, carried out fencing work and sought a contribution from the respondent, Lerve. The Tribunal dismissed Amies' application on the basis that they had not provided a valid notice to contribute to Lerve. Amies sought leave to appeal the Tribunal's decision, arguing that their conduct was sufficient to constitute a valid notice, and that there was an agreement to contribute to the fencing work. The court was required to decide whether Amies' conduct amounted to a valid notice, whether there was an agreement to contribute to the fencing work, and whether grounds for leave to appeal existed.

The court considered whether Amies' conduct was sufficient to amount to a valid notice to contribute to the fencing work. The court found that Amies had not provided a valid notice as required by the law, and that their conduct did not amount to a valid notice. The court also considered whether there was an agreement to contribute to the fencing work, but found that there was no such agreement. The court concluded that the grounds for leave to appeal were not made out, as Amies had not demonstrated a reasonable prospect of success on appeal.

Additionally, the court addressed the issue of whether the Magistrate erred in not directing the parties to swear an oath or affirmation before giving evidence. The applicant contended that the Magistrate should have directed the parties to swear an oath or affirmation. However, the court noted that section 28 of the Queensland Civil and Administrative Tribunal Act 2009 provides that the Tribunal is not bound by the rules of evidence, and therefore, the failure to direct the parties to swear an oath or affirmation did not constitute an error.

The court dismissed Amies' application for leave to appeal, finding that there were no grounds for leave to appeal. The court did not make any orders regarding the validity of the notice or the agreement to contribute to the fencing work.

Orders