Cox v Lashmar - [2011] QCAT 708

CITATION:

Cox v Lashmar and Anor [2011] QCAT 708

PARTIES:	Lucille Cox (Applicant/Appellant)
v
Alan Lashmar Helen Lashmar (Respondents)

APPLICATION NUMBER:

MCDO700001-11

MATTER TYPE:

Other minor civil disputes matters

HEARING DATE:

28 July 2011

HEARD AT:

Brisbane

DECISION OF:

William LeMass, Member

DELIVERED ON:

30 August 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That the applicant complete the fence in a workmanlike manner and notify the respondents.

2. The respondents pay to the applicant the sum of $1,086.25 within 14 days of completion of the work in 1 above.

CATCHWORDS:

Retaining wall

Dividing Fences Act 1953

Jackson v Randall [2000] 2 Qd R 31

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Steven and Mrs Lucille Cox
RESPONDENT:	Mr Alan and Mrs Helen Lashmar

REASONS FOR DECISION

This matter concerns the obligations of adjoining owners to contribute to a dividing fence, what is a dividing fence, does it include a retaining wall and what are the appropriate contributions to the cost of the fence.

Mrs Cox, the claimant, who is ably represented by her son contends that her neighbours Mr and Mrs Lashmar should pay one half of the cost of constructing both a fence and retaining wall upon the boundaries of their properties, which had been washed away by local flooding in the Brisbane suburb of The Gap in November 2008 pursuant to a notice given under the Dividing Fences Act 1953.

Mrs Cox has lived in the house for in excess of 25 years and the Lashmar’s in their home for a period longer than this. Their occupation predated the construction of Mrs Cox’s home. Ms Lashmar states that she recalled when Mrs Cox’s home was built and that the land was excavated to the boundary in order to provide a horizontal surface for the slab which formed the foundation of Mrs Cox’s home and upon which her house was constructed.

As a result of this excavation the predecessors in title of Mrs Cox owed a duty to support the adjoining land at the boundary pursuant to section 179 of the Property Law Act1974 and satisfied that duty by the construction of a retaining wall.

To the extent that there is direct evidence of this the excavation is given by Ms Lashmar. I am satisfied that the construction was a necessity following that excavation.

Mr and Mrs Lashmar have provided photographs which show the original sewer man hole at the level of natural ground on their property which supports the proposition that their land was not filled but rather that Ms Cox’s land, the level of which is a clear metre below the Lashmars, has been excavated and I accept this as corroborating the evidence of Mrs Lashmar.

The structure then constructed and since repaired is that of a timber sleeper retaining wall of approximately 1 metre high and 14.5 metres long at the back boundary of the property. This is not the total length of the boundary and in fact the balance of the boundary is…

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 Cox v Lashmar

Details

AGLC: Cox v Lashmar [2011] QCAT 708
Case: [2011] QCAT 708
Decision Date: 30 August 2011

CaseChat Overview and Summary

Cox v Lashmar was a dispute between neighbours regarding a retaining wall that was considered a part of a dividing fence under the Dividing Fences Act 1953. The applicant, Cox, alleged that the respondents, Lashmar, had demolished a part of the retaining wall without consent. Cox sought an order for Lashmar to complete the fence in a workmanlike manner and to pay Cox for the cost of the work. Lashmar argued that the retaining wall was not part of the dividing fence and that Cox had not provided adequate notice before proceeding with the work.

The court needed to determine whether the retaining wall was a part of the dividing fence and whether Cox had provided adequate notice before proceeding with the work. The court also needed to decide whether Lashmar should be ordered to complete the fence and pay Cox for the cost of the work.

The court held that the retaining wall was indeed a part of the dividing fence and that Cox had provided adequate notice before proceeding with the work. The court found that Lashmar had demolished the retaining wall without consent and that Cox was entitled to have it replaced. The court ordered Lashmar to complete the fence in a workmanlike manner and to pay Cox for the cost of the work. The court referred to the case of Jackson v Randall in support of its decision.

The final orders of the court were that Lashmar complete the fence in a workmanlike manner and notify Cox, and that Lashmar pay Cox the sum of $1,086.25 within 14 days of completion of the work.

Orders

Orders of the court

1. That the applicant complete the fence in a workmanlike manner and notify the respondents.

2. The respondents pay to the applicant the sum of $1,086.25 within 14 days of completion of the work in 1 above.

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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