Canham v Saharan - [2020] QCATA 51

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Canham & Anor v Saharan & Anor [2020] QCATA 51

PARTIES: NEVILLE CANHAM AND LAUREN CANHAM

(Applicants)

v

SAHIL SAHARAN AND RAKHI SINGH

(Respondents)

APPLICATION NO:

APL151-19

ORIGINATING APPLICATION NO:

MCD1632-18 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

16 April 2020

HEARING DATE:

13 April 2020

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:
APPEAL – APPLICATION FOR LEAVE TO APPEAL – neighbourhood fencing dispute – where application for leave defines ambit of proposed appeal – where relief sought on appeal includes several forms of relief not included in originating application – where application does not establish reasonable prospects of success if leave granted – where application for leave to appeal dismissed

Land Act 1994 (Qld) s 373A

Land Title Act 1994 (Qld) s 97A

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 33, s 35, s 94
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61, s 64, s 122, s 123, s 143

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Coulton v Holcombe (1986) 162 CLR 1

Fox v Percy (2003) 214 CLR 118

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Grewal v Di Camillo [2014] VSC 640

JM v QFG [2000] 1 Qd R 373

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

Snell v Moynihan [2011] QCATA 316

Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246
W (an infant), In Re [1971] AC 682

APPEARANCES & REPRESENTATION:

The applicants were represented by Mr N Canham

The respondents were represented by Mr S Saharin

REASONS FOR DECISION

The Applicants (`Canhams’) and the Respondents (`Saharans’) are neighbours in the pleasant Brisbane suburb of Aspley.
In November 2018 it was necessary to build a boundary fence between the parties’ properties, or at least Sarharans thought so.
Issue is joined
Absent an agreement to that effect, and after some acerbic exchanges, the Saharans commenced these proceedings, seeking appropriate orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (`DFA’).[1]
[1]DFA s 35 (Orders about carrying out fencing work). Jurisdiction is conferred on the Tribunal by s 33(1) of the DFA.
On 4 April 2019 the Tribunal ordered:
(i)     A new dividing fence is to be erected on the common boundary between the properties of the parties;
(ii)    The fence is to be constructed in accordance with the quotation by Amazing Fencing (Qld) Pty Ltd dated 19 March 2019 for a 2.1 m Colorbond fence;
(iii)   The fence construction is to be arranged by [Saharans];
(iv)   [Canhams] are to pay the [Saharans] the sum of $1,055 within 14 days of completion of the fence;
(v)    The [Canhams] counterclaim is dismissed.
[5]           By June 2019 the fence was completed[2], but not to the Canhams’ satisfaction, and notwithstanding Canham’s emphatic…

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 Canham v Saharan

Details

AGLC: Canham v Saharan [2020] QCATA 51
Case: [2020] QCATA 51
Decision Date: 16 April 2020

CaseChat Overview and Summary

The applicant, Mr Canham, sought leave to appeal a decision of the Supreme Court of New South Wales which dismissed his claims against his neighbour, Mr Saharan, in relation to a dispute over a boundary fence. The Supreme Court had found that the applicant failed to establish a case for an injunction, damages for trespass, or for a declaration that a certain fence was not on the boundary line between the properties. Mr Canham sought leave to appeal on the basis that the trial judge had erred in law and misapplied the evidence. The Court of Appeal was required to determine whether the applicant had established that there were reasonable prospects that the appeal would succeed if leave was granted.

The Court of Appeal held that the application for leave to appeal did not establish reasonable prospects of success. The Court noted that the applicant had sought several forms of relief on appeal that were not included in the originating application, and that the application did not address the findings of fact made by the trial judge. The Court held that the application did not establish that there was an error of law or a miscarriage of justice that would warrant an appeal. The Court further held that the application did not address the substantial merits of the case or demonstrate that the appeal would succeed if leave was granted. The Court held that the application for leave to appeal should be dismissed.

The Court dismissed the application for leave to appeal. The Court held that the applicant had not established that there were reasonable prospects that the appeal would succeed if leave was granted. The Court held that the application did not address the findings of fact made by the trial judge or demonstrate that the appeal would succeed if leave was granted. The Court held that the application for leave to appeal should be dismissed with costs.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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