Cordingley v Jarvis - [2012] QCAT 701

CITATION:

Cordingley v Jarvis [2012] QCAT 701

PARTIES:	Evan James Cordingley
v
Delsie Jarvis

APPLICATION NUMBER:

MCDO93-12 (Ipswich)

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

11 September 2012

HEARD AT:

Ipswich

DECISION OF:

Paul Favell, Member

DELIVERED ON:

9 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The application is dismissed.

CATCHWORDS:

Dividing fence claim – Notice to contribute to contribute to fencing work in form required under the Act not given – Jurisdiction

Neighbourhood Disputes Resolution Act 2011

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Evan James Cordingley

RESPONDENT:

Garry Jarvis

REASONS FOR DECISION

Evan James Cordingley and Delsie Jarvis own adjoining properties. Mr Cordingley seeks to have a diving fence erected on the boundary between 21 and 23 Jacaranda Street East Ipswich.
In order to commence the process Mr Cordingley wrote to Mrs Jarvis on 25 March 2009. In the letter Mr Cordingley alleged there was some conflict between the tenants of Mrs Jarvis and the tenants of Mr Cordingley. Evidence was given by some of the tenants and it is clear that conflict existed.
Mr Cordingley supplied a quote from AK & R Forsyth, a fencing contractor, which quoted $2,750.00 for a 1.8 m hard wood paling fence to be erected on the existing fence alignment from the new back fence of Mrs Jarvis to the footpath. He sough a one half contribution of $1,375.00 from Mrs Jarvis.
That quote was dated 10 March 2009 and described the fence as “paling fence using all CCA treated hardwood”. It included amounts for other fencing work for which Mr Cordingley was not seeking contribution.
On 20 April 20009 Mr Cordingley wrote to Mrs Jarvis asking Mrs Jarvis to advise of her intentions concerning the fence.
By 18 April 2012 there was no agreement as to a fence and relationships between the occupants of the adjoining properties had deteriorated. Mr Cordingley again wrote to Mrs Jarvis providing a new quote. That quote was from Ken Martin, dated 29 March 2012 and was to “supply and install 1.8m high timber fence at boundary on 21-23 Jacaranda Street East Ipswich – Bore holes 1m deep for hardwood posts, rails with CCA treated pine paling” for $3,280.00 including GST and materials. Mr Cordingley sought payment from Mrs Jarvis of one half of the quoted price, namely $1,640.00 plus $530.00 which he said was “the additional difference between the two quotes”.
I was told that the local government did not have a policy or local law about dividing fences and there was no requirement for fencing work in any development proposals for the properties.
Mr Cordingley in his application said that the son of Mrs Jarvis replied in writing to the second letter and agreed to erect part of the fence. In a letter dated 24.04.2009 Garry Jarvis wrote,
“I would like to confirm we will replace the fence that is existing on our property now with the same or similar to the new fence just erected at the rear of the property. We…

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 Cordingley v Jarvis

Details

AGLC: Cordingley v Jarvis [2012] QCAT 701
Case: [2012] QCAT 701
Decision Date

CaseChat Overview and Summary

In Cordingley v Jarvis, the applicant, Evan James Cordingley, sought various orders against Delsie Jarvis, including for the erection of a dividing fence and payment for damages and costs associated with plumbing and water usage. The dispute centred around the lack of a sufficient dividing fence between the properties of the parties and allegations of damage and costs incurred by the applicant. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT) in Ipswich, with Paul Favell as the deciding member.

The primary legal issue before the court was whether the Tribunal had jurisdiction to hear the application under the Neighbourhood Disputes Resolution Act 2011. Specifically, the court needed to determine if Mr Cordingley had complied with the statutory requirements for giving a notice to contribute to the cost of the fence, as stipulated in section 30(2) of the Act. Additionally, the court had to consider if there was sufficient evidence to support the claims for damages and costs related to the tap repair and excess water usage.

The court found that while Mr Cordingley had attempted to comply with the statutory requirements, his notice was not in the approved form as required by section 31(2) of the Act. Consequently, the court concluded that it did not have jurisdiction to make any orders as sought by Mr Cordingley. Furthermore, the court held that even if it had jurisdiction, it was not satisfied that Mrs Jarvis would be liable for the claims related to the tap repair and excess water usage. Therefore, the application was dismissed in its entirety.

The final orders of the Tribunal were that the application made by Mr Cordingley against Mrs Jarvis was dismissed. This decision effectively denied Mr Cordingley’s requests for the erection of a dividing fence, payment for damages and costs associated with plumbing and water usage.

Orders