CC Traders Pty Ltd & Lattison Pty Ltd v Body Corporate for Sussex Park - [2016] QCAT 246

CITATION:	CC Traders Pty Ltd & Lattison Pty Ltd v Body Corporate for Sussex Park & Ors [2016] QCAT 246
PARTIES:	CC Traders Pty Ltd Lattison Pty Ltd (Applicants)
v
Body Corporate for Sussex Park CTS 26862 Mr Taylor Mrs Taylor (Respondents)

APPLICATION NUMBER:

MCDO792-16; MCDO322-16

PARTIES:	CC Traders Pty Ltd Lattison Pty Ltd (Applicants)
v
Body Corporate for Sussex Park CTS 26862 Mr Henman Ms Dean (Respondents)

APPLICATION NUMBER:

MCDO767-16; MCDO516-16

PARTIES:	CC Traders Pty Ltd Lattison Pty Ltd (Applicants)
v
Body Corporate for Sussex Park CTS 26862 Mr Brady Mrs Brady (Respondents)

APPLICATION NUMBER:

MCDO766-16; MCDO515-16

PARTIES:	CC Traders Pty Ltd Lattison Pty Ltd (Applicants)
v
Body Corporate for Sussex Park CTS 26862 CJ Offner (Respondents)

APPLICATION NUMBER:

MCDO793-16; MCDO323-16

PARTIES:	CC Traders Pty Ltd Lattison Pty Ltd (Applicants)
v
Body Corporate for Sussex Park CTS 26862 Mr Sheehan Mrs Sheehan (Respondents)

APPLICATION NUMBER:

MCDO796-16; MCDO324-16

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

24 May 2016

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

24 May 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

Same order in all matters:

1. QCAT had jurisdiction.

2. Matters should be heard together.

3. The matters are to be returned to Southport for mediation.

CATCHWORDS:

JURISDICTION – dividing fence issues – multiple owners – fairness to all parties – mediation and hearing in finality

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 35
Body Corporate for Victoria Gardens CTS 19272 v Banner & Ors [2014] QCAT 246

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

The Tribunal considered that before proceeding further with all five applications two points ought to be clarified at the outset.
a) Jurisdiction given that the fencing applications involved common boundary retaining wall issues.
b) Where multiple property owner abut a single common boundary should all applications involving that single common boundary be heard together.

Considerations

Five dividing fence applications were lodged at Southport on 21 and 26 April 2016 by CC Traders Pty Ltd and Lattison Pty Ltd.
The two applicant corporations are the owners of land described as Lot 900 SP 255821 which land borders a town house complex Sussex Park CTS 26862. Five individual land owners within Sussex Park, Lots 15, 16, 17, 18 and 19 border the approximate 64 metre common boundary with the applicants Lot 900.
Fencing quotes obtained for the fencing of the approximate 64 metre common boundary make provision for the replacement of an asserted failed sleeper retaining wall as well as construction of a new fence atop to replace an asserted dilapidated/failed timber paling fence.
A further issue raised in the applications is encroachment of the existing retaining wall onto the applicants land by as much as a quarter of a metre and the asserted necessity for a local authority imposed setback within land being retained/supported i.e. Lots 15 to 19.

Summary

Under s 35 of…

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.

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Details

AGLC: CC Traders Pty Ltd & Lattison Pty Ltd v Body Corporate for Sussex Park [2016] QCAT 246
Case: [2016] QCAT 246
Decision Date: 24 May 2016

CaseChat Overview and Summary

In the Queensland Civil and Administrative Tribunal, two separate appeals were heard and determined together: CC Traders Pty Ltd & Lattison Pty Ltd v Body Corporate for Sussex Park. The dispute involved the ownership and maintenance of a dividing fence between the properties of CC Traders, Lattison Pty Ltd, and the Body Corporate for Sussex Park. The core issue was whether the Body Corporate was obligated to maintain the fence or whether this responsibility lay with the other parties. The appeals were consolidated for the purposes of determining the jurisdiction and the appropriate course of action for resolving the dispute.

The primary legal issue before the Tribunal was whether it had jurisdiction to hear the appeals and, if so, how the matters should be managed. This involved assessing the appropriateness of consolidating the appeals, the applicability of mediation as a means of resolution, and whether the matters could be heard in finality. The Tribunal had to consider the rights of all parties and the potential for a fair resolution under the existing legislative framework.

The Tribunal concluded that it did indeed have jurisdiction over the appeals. It determined that the matters should be heard together to ensure a comprehensive and fair resolution. The Tribunal found that the best course of action was to return the matters to the Southport Magistrates Court for mediation, with the aim of achieving a final resolution. This decision was made in the interests of all parties, ensuring that the dispute could be resolved in a manner that was fair and just, while also considering the principles of finality and efficiency in dispute resolution processes.

The orders made by the Tribunal were that QCAT had jurisdiction, the matters should be heard together, and they were to be returned to Southport for mediation. This decision ensures that the dispute will be resolved through a mediated process, aiming to achieve a final and fair outcome for all parties involved.

Orders

Orders of the court

Same order in all matters:

1. QCAT had jurisdiction.

2. Matters should be heard together.

3. The matters are to be returned to Southport for mediation.

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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