Burton v Smith

[2013] QCAT 474

CITATION:		Burton v Smith [2013] QCAT 474
PARTIES:	Douglas Geoffrey Burton (Applicant)
v
Georgina Louise Smith (Respondent)

APPLICATION NUMBER:   Brisbane MCD 1276/13

MATTER TYPE: Other civil dispute matters

HEARING DATE:     Oral hearing 8 July 2013; on the papers hearing 7 August 2013

HEARD AT:  Brisbane  

DECISION OF: Louise McDonald, Member

DELIVERED ON: 7 August 2013.  Written Reasons 16 September 2013.

DELIVERED AT:      Brisbane

ORDERS MADE:

1.    A new dividing fence be erected on the common (agreed) boundary between the properties of the parties.

2.    The fence be constructed in accordance with the quotation of 16 April 2013 of Amazing fences.

3.    The fence construction be arranged by the respondent.

4.    The fence construction be completed within 12 weeks of this order.

5.    The applicant shall pay the respondent $772.50 (representing half the costs of the fence) within 14 days of completion of the fence.

6.    Should the respondent wish to construct the dividing fence as a capped fence with tapered palings at the front, the respondent shall be entitled to do so, but the additional costs thereof over and above the quoted sum aforesaid, shall be born entirely by the respondent.

CATCHWORDS:  Dividing Fences, Neighbourhood dispute Resolution Act 2011, Sufficient fence.

APPEARANCES and REPRESENTATION (if any):

APPLICANT	Douglas Burton
RESPONDENT:	Georgina Smith

REASONS FOR DECISION

1. Mr Burton brought this application for an order to fence as a result of the longstanding dispute between him and Ms Smith about the dividing fence along their common boundary. Mr Burton also sought for costs of the claim and conduct of the proceedings.

2. Both parties are owners of their adjoining properties. They had agreed that the white ant infested fence along their boundary line needed to be replaced. For some time, they were unable to agree on the kind of fence, the cost of the fencer, the fencing contractor, the space between palings.

3. Mr Burton objected strongly to Ms Smiths’ “management style” which he described as non-co-operative and unilateral decisions being made. He was particularly keen to ensure the palings were placed with sufficient space to allow him to see any “unfair work”. He had alleged that Ms Smith’s actions in placing soil against the fence had encouraged white ants. Mr Burton required Ms Smith to execute a fencing agreement he had drafted to contractually commit Ms Smith to obligations in relation to the fence.

4. Ms Smith indicated that she had difficulties communicating with Mr Burton and the two had had a difficult relationship, arising partly due to issues around the fence. In response to these longstanding difficulties, she had considered the option of building the fence set back from the boundary line so that the dispute could be overcome. She operates a family day care from home and needs to ensure the children are safely maintained in a fully fenced environment. Ms Smith refused to sign Mr Burton’s fencing agreement.

5. Ultimately the two could not agree between two quotes, Amazing Fences, being the preferred kind of fence, cost and contractor of Mr Burton. The durability of the posts, the preservative treatment, fence capping, tapering of the palings were aspects of the quotes that were unable to be agreed. Amazing fences offered a cheaper quote. The Tribunal considered this quote offered the standard of a “sufficient fence” within the meaning of the Act. Ms Smith preferred that provided by Ambush Fences which would provide an aesthetically superior fence at greater cost, including timber capping and tapered design at the front.

6. Where the parties were unable to agree, upon application the Tribunal has settled this dispute in accordance with the Neighbourhood Dispute Resolution Act 2011 (the Act).  Section 21 of this Act determines that parties are generally equally liable for the cost of a dividing fence. Section 21(2) provides that an owner who wants to carry out work to a greater standard than a sufficient diving is liable for that cost to the extent that it is greater than a sufficient dividing fence. As the lesser quote represents a sufficient fence, Ms Smith should be liable for any higher standard.

7. The Tribunal has made orders in accordance with s 35(1) (b)(c ) (and (e) of the Act as follows:

   a)    A new dividing fence be erected on the common (agreed) boundary between the properties of the parties.

   b)    The fence be constructed in accordance with the quotation of 16 April 2013 of Amazing fences.

   c)    The fence construction be arranged by the respondent.

   d)    The fence construction be completed within 12 weeks of this order.

   e)    The applicant shall pay the respondent $772.50 (representing half the costs of the fence) within 14 days of completion of the fence.

   f)     Should the respondent wish to construct the dividing fence as a capped fence with tapered palings at the front, the respondent shall be entitled to do so, but the additional costs thereof over and above the quoted sum aforesaid, shall be born entirely by the respondent.

8. Mr Burton’s claim for costs is dismissed. Parties must bear their own costs in accordance with s 100 of the Queensland Civil and Administrative Tribunal Act 2009.