Cooper v O'Connor

[2016] QCATA 180

CITATION: Cooper v O’Connor [2016] QCATA 180  

PARTIES:	Peter Wayne Cooper (Applicant/Appellant)
v
Neil Francis O’Connor (Respondent)

APPLICATION NUMBER: APL109 -16

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 15 November 2016

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    The appeal is allowed.

3.    The decisions of the tribunal dated 4 March 2015, 31 March 2015, 20 May 2015 and 25 January 2016 are set aside.

4.    The application for minor civil dispute – dividing fences filed 13 January 2015 is dismissed.

5.    Peter Cooper shall pay Neil O’Connor’s costs of and incidental to the appeal.

6.    Peter Cooper shall file and serve submissions as to the appropriate Scale for assessing costs by 4:00 pm on 2 December

7.    Neil O’Connor shall file and serve submissions in response by 4:00 pm on 16 December 2016.

8.    The tribunal shall decide the question of costs based on the parties’ submissions and without the parties appearing at a hearing.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – NOTICE – where notice to contribute for fencing work – where fencing work not done – where applicant wanted order about fencing work – whether notice to contribute valid – whether notice to contribute in fact an agreement to fence – whether tribunal had jurisdiction – whether error of law – whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – where respondent property held in joint names – where tribunal joined deceased – whether error of law – whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – where applicant submitted tribunal had no jurisdiction to make orders – where applicant failed to engage in tribunal proceeding – where application for leave to appeal filed out of time – where applicant could not explain delay – whether orders should be set aside

APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS - COSTS – DEPRIVING SUCCESSFUL PARTY OF COSTS – CONDUCT OF PARTY OR PROCEEDING – DELAY – DELAY IN EXERCISING RIGHTS -
where applicant failed to engage in tribunal proceeding – where application for leave to appeal filed out of time – where applicant could not explain delay – whether tribunal should be entitled to costs of the appeal

Appeal Costs Fund Act 1973 (Qld) s 15
Neighbourhood Disputes (Dividing Fences and Trees) Act 2001 (Qld) s 30(2), 32, 30(3), 31(2)(a), 31(2)(c), 31(3), 31(6), 35(c),
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 28(3)(b), s 48(1)(a), s 61, s 100, s 102, s 122, s 132(2), s 132(4), s 133, s 134, s 135, s 138,…