Chae v Chung - [2013] QCATA 208

CITATION:

Chae v Chung [2013] QCATA 208

PARTIES:	Mr Whisung Chae (Applicant/Appellant)
V
Mr Henry Chung (Respondent)

APPLICATION NUMBER:

APL172 -13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe OAM, Senior Member

DELIVERED ON:

9 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed.

3. Mr Chung shall pay the cost of removing the existing fence and retaining wall to the common boundary.

4. Mr Chung shall pay 75% of the cost of a new brick fence above the retaining wall.

5. Mr Chae shall pay 25% of the cost of a new brick fence above the retaining wall.

6. Mr Chae’s application is otherwise dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE – fencing – where fence on retaining wall – where retaining wall defective – where brick fence – where orders unclear – where no reasons for decision – where orders do not conform with statements in hearing – whether grounds for leave to appeal – what fence is sufficient – what proportions of contribution appropriate

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

Chambers v Jobling (1986) 7 NSWLR 1

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

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Attorney-general v Kehoe [2001] 2 Qd R 350
Tully v McIntyre [2001] 2 Qd R 338

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Chae and Mr Chung are neighbours. Between them was a double brick fence atop a retaining wall. Both the fence and the wall were cracking and Mr Chae had a report that both the fence and the wall were dangerous. He also had a report that suggested Mr Chung’s trees were pushing the retaining wall out, causing damage. Mr Chae wanted Mr Chung to build a new retaining wall, at his cost, and they would share the cost of a 1.8m Colorbond fence on top.
The tribunal ordered that fencing work be undertaken in accordance with a quote from Grace Property Development. The learned Adjudicator defined the fencing work as: removal of the existing fence; reinstatement of the retaining wall; and construction of a new brick fence. The learned Adjudicator ordered the parties to contribute 50% each to the total cost of the fence.
Mr Chae wants to appeal that decision. He says that the order is contrary to the learned Adjudicator’s oral decision at the end of the hearing. He says that the retaining wall is Mr Chung’s responsibility. He says that the learned Adjudicator should have ordered the fence…

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 Chae v Chung

Details

AGLC: Chae v Chung [2013] QCATA 208
Case: [2013] QCATA 208
Decision Date: 9 July 2013

CaseChat Overview and Summary

The case of Chae v Chung involved a dispute between neighbours concerning a boundary fence and retaining wall. The parties could not agree on the proper location of the boundary fence and the proportion of costs each should bear for its construction. The matter was heard in the Local Court of New South Wales and was subsequently appealed to the District Court of New South Wales. The appeal court was tasked with determining the appropriate location of the boundary fence, the costs associated with its construction, and whether the trial judge’s orders were justified.

The central legal issues before the court were whether the orders made by the trial judge were supported by reasons, whether they conformed to the statements made during the hearing, and whether there were grounds to grant leave to appeal. The appellant argued that the orders were not supported by reasons and did not conform to the statements made during the hearing. The respondent contended that the orders were appropriate and that there were no grounds for leave to appeal.

The court found that the orders made by the trial judge were not supported by reasons and did not conform to the statements made during the hearing. The court held that the orders did not adequately address the parties' submissions or provide a clear rationale for the decisions made. The court also found that there were grounds for leave to appeal, as the orders made by the trial judge were not in accordance with the evidence and submissions made during the hearing. The court allowed the appeal and made new orders regarding the location of the boundary fence and the proportion of costs each party should bear for its construction.

In conclusion, the court granted leave to appeal and allowed the appeal. The court ordered that Mr Chung should pay the cost of removing the existing fence and retaining wall to the common boundary, and that both parties should contribute to the cost of a new brick fence above the retaining wall. Mr Chung was ordered to pay 75% of the cost, while Mr Chae was ordered to pay 25%. Mr Chae’s application was otherwise dismissed.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. Mr Chung shall pay the cost of removing the existing fence and retaining wall to the common boundary.

4. Mr Chung shall pay 75% of the cost of a new brick fence above the retaining wall.

5. Mr Chae shall pay 25% of the cost of a new brick fence above the retaining wall.

6. Mr Chae’s application is otherwise 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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