Collins v O'Rourke - [2019] QCATA 164

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Collins v O’Rourke & Anor [2019] QCATA 164

PARTIES:

PATRICIA COLLINS
(applicant/appellant)

v

MATTHEW O’ROURKE
SHARON O’ROURKE

(respondents)

APPLICATION NO:

APL257-18

ORIGINATING APPLICATION NO:

MCDO84 of 2018 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

13 December 2019

HEARING DATE:

13 September 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member Dr J R Forbes

ORDERS:

1. The application for leave to appeal or appeal is refused.

2. No order as to costs.

CATCHWORDS:

APPEAL – APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – leave to appeal – minor civil dispute – fencing dispute – Neighbourhood Disputes and Dividing Fences Act 2011 (Qld) – where retaining wall constructed by respondents without consent of applicant – where applicant seeks removal of the wall, construction of a fence and compensation – whether existing orders should stand – where order made for partial removal of wall – where order made for construction of 1.8 metre high fence on remaining portion of wall – where fencing in question is a pool barrier – where in consequence certain provisions of the Building Act 1975 (Qld) supervene – whether leave to appeal should be granted

Building Act 1975 (Qld), s 245X, s 245XB, s 245XD, s 245XQ, s 245XV
Neighbourhood Disputes and Dividing Fences Act 2011 (Qld), s 9, s 11, s 12, s 13, s 31, s 35, s 39

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 35, s 142

Amies v Lerve [2014] QCATA 61
Cooper v O’Connor [2016] QCATA 180
Fisher v Wenzel (No 1) [2018] QCAT 261
Pierce v Moderate [2014] QCAT 438

Priddle v Queensland Building and Construction Commission [2016] QCAT 280
Terera & Anor v Clifford [2017] QCA 181

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 applicant and the respondents are next door neighbours in Clayfield, Brisbane. The applicant seeks leave to appeal a decision of the Tribunal made on 28 August 2018.[1] The applicant for leave to appeal was also the applicant in the hearing at first instance.
[1]Leave to appeal is required from a decision in a proceeding for a minor civil dispute: Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
The casus belli arose when the respondents, without the applicant’s consent, dug a trench on or near the mutual boundary and erected a concrete block retaining wall.
On 15 June 2018, Collins sought orders of the Tribunal for:
(a)Compensation for damage to, or destruction of a dividing fence;
(b)Removal of things attached to a dividing fence and restoration of same;
(c)Costs, namely the filing fee;
(d)Prevention of construction or demolition of a dividing fence without authorisation;
(e)Removal of a dividing fence constructed without authorisation;
(f)Costs of such removal to be paid by the respondents;
(g)A dividing fence forming part of a pool barrier…

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 Collins v O'Rourke

Details

AGLC: Collins v O'Rourke [2019] QCATA 164
Case: [2019] QCATA 164
Decision Date: 13 December 2019

CaseChat Overview and Summary

In the matter of Collins v O'Rourke, the primary dispute between the parties centred around the construction of a retaining wall by the respondents, O'Rourke, on their property without the consent of the applicant, Collins. Collins sought the removal of the wall, the construction of a fence, and compensation, while the O'Rourkes argued that the construction was lawful. The case was heard in the District Court of Queensland, with the matter subsequently brought before the Court of Appeal.

The primary legal issues for the court's consideration were whether Collins had a right to appeal the decision and, if so, whether leave to appeal should be granted. Specifically, the court had to determine whether the appeal was in the interests of justice and whether the existing orders, which mandated the partial removal of the wall and the construction of a 1.8-metre high fence on the remaining portion of the wall, should stand. Furthermore, the court had to address the implications of certain provisions of the Building Act 1975 (Qld), which applied to the fencing in question due to it functioning as a pool barrier.

The Court of Appeal considered the general principles governing appeals, particularly the right of appeal in minor civil disputes under the Neighbourhood Disputes and Dividing Fences Act 2011 (Qld). The court found that the appeal did not lie in the interests of justice, as the existing orders provided a fair and practical resolution to the dispute. Additionally, the court noted that the Building Act provisions did not negate the applicability of the Neighbourhood Disputes and Dividing Fences Act, thereby upholding the lower court's decision. Consequently, the application for leave to appeal was refused.

No order was made as to costs.

Orders

Orders of the court

1. The application for leave to appeal or appeal is refused.

2. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Collins v O’Rourke & Anor [2019] QCATA 164
PARTIES:	PATRICIA COLLINS (applicant/appellant)
v
MATTHEW O’ROURKE SHARON O’ROURKE (respondents)
APPLICATION NO:	APL257-18
ORIGINATING APPLICATION NO:	MCDO84 of 2018 (Brisbane)
MATTER TYPE:	Appeals
DELIVERED ON:	13 December 2019
HEARING DATE:	13 September 2019
HEARD AT:	Brisbane
DECISION OF:	Senior Member Aughterson Member Dr J R Forbes
ORDERS:	1. The application for leave to appeal or appeal is refused. 2. No order as to costs.
CATCHWORDS:	APPEAL – APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – leave to appeal – minor civil dispute – fencing dispute – Neighbourhood Disputes and Dividing Fences Act 2011 (Qld) – where retaining wall constructed by respondents without consent of applicant – where applicant seeks removal of the wall, construction of a fence and compensation – whether existing orders should stand – where order made for partial removal of wall – where order made for construction of 1.8 metre high fence on remaining portion of wall – where fencing in question is a pool barrier – where in consequence certain provisions of the Building Act 1975 (Qld) supervene – whether leave to appeal should be granted Building Act 1975 (Qld), s 245X, s 245XB, s 245XD, s 245XQ, s 245XV Neighbourhood Disputes and Dividing Fences Act 2011 (Qld), s 9, s 11, s 12, s 13, s 31, s 35, s 39 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 35, s 142 Amies v Lerve [2014] QCATA 61 Cooper v O’Connor [2016] QCATA 180 Fisher v Wenzel (No 1) [2018] QCAT 261 Pierce v Moderate [2014] QCAT 438 Priddle v Queensland Building and Construction Commission [2016] QCAT 280 Terera & Anor v Clifford [2017] QCA 181
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’).