Collins v McCreath

[2016] QCAT 425

CITATION:

Collins v McCreath [2016] QCAT 425

PARTIES:

Bryan Collins
(Applicant)

v

Clare McCreath

(Respondent)

APPLICATION NUMBER:

MCDO1148-16

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

31 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   The reopening application is granted.

2.   The Tribunal orders of 22 August 2016 are set aside.

3.   The application is relisted for hearing on a date to be advised.

CATCHWORDS:

Dividing fence application – hearing in absence of respondent – reopening ground – procedural fairness

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

1. Mr Collins is an owner of 222 Coopers Camp Road, Ashgrove, and Ms McCreath is the owner of 220 Coopers Camp Road, Ashgrove. There is presently constructed a dividing fence between the two properties.

2. Mr Collins made application for the construction of a new dividing fence.

3. Ms McCreath’s residential address is 46 Amarina Avenue, Ashgrove – not 220 Coopers Camp Road, Ashgrove. That property is rented through a real estate agent, Blocksidge & Ferguson. Ms McCreath’s address was ascertainable. Instead, it appears the initiating application was addressed to her real estate agent, Blocksidge & Ferguson.

4. Ms McCreath says she was not notified of the date of hearing, and there is no evidence that she was. The same applies to the determination of 22 August 2016. There is also evidence that Ms McCreath was ill in hospital shortly prior to 22 August 2016. Such might well constitute an additional and legitimate reason for non-attendance on 22 August 2016.

5. In these circumstances, and with observance to the principles of procedural fairness and natural justice, the application ought to be properly heard with both parties present. Accordingly, the Tribunal’s orders are as follows:

   1.    The reopening application is granted.

   2.    The Tribunal orders of 22 August 2016 are set aside.

   3.    The application is relisted for hearing on a date to be advised.