Cullen v Maginn - [2011] QCATA 21

CITATION:

Cullen v Maginn & Anor [2011] QCATA 21

PARTIES:	Stephen William CULLEN (Applicant/Appellant)
v
Martin William MAGINN And Marilyn MAGINN (Respondents)

APPLICATION NUMBER:

APL174-10

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President
Jim Allen, Member

DELIVERED ON:

14 February 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Grant leave to appeal;

2. Allow the appeal; and

3. Order that the respondents pay the applicant the sum of $374 as contribution to the demolition and replacement of part of the dividing fence between their properties within 14 days of the date of this order; and

4. Further order that the respondents pay to the applicant the sum of $30 in respect of costs of the application within 14 days of the date of this order.

CATCHWORDS :

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – DIVIDING FENCES – where dividing fence has been removed and other owner seeks its replacement – whether adjoining owner liable to contribute

Dividing Fences Act 1953 ss 6, 7, 8
Queensland Civil and Administrative Tribunal Act 2009 ss 8, 6, 32, 100, 102, 142(3)
Queensland Civil and Administrative Tribunal Rules 2009 r 83

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited.
QUYD Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41, cited.

REASONS FOR DECISION

President:

I have had the advantage of reading the reasons of Mr Allen, the other Member of the Appeal Tribunal in this matter. I agree with those reasons, and the orders he proposes.

Jim Allen, Member:

Mr Cullen, and Mr and Mrs Maginn, own adjoining rural properties at Lower Beechmont. There had been a rock wall separating the properties which was built by Mr Cullen some years ago. This rock wall, according to Mr Cullen, was marginally within his boundary and he demolished it with the help of his son Errol in February 2010.

Behind that wall there was a partial timber screen which was left in place after the demolition of the wall and which was in need of repair. Mr Cullen wished to erect a paling fence to replace the rock wall, and a timber screen, and served Mr and Mrs Maginn with a notice to fence under the Dividing Fences Act 1953 (the Act). Mr and Mrs Maginn refused to make a contribution towards the fence. Mr Cullen then made an application to QCAT under s 9(1) of the Act.

The application was heard by a QCAT Adjudicator on 27 July 2010. The transcript of the hearing shows that the learned Adjudicator dismissed Mr Cullen’s application on the basis that there had already been a dividing fence between the properties, and that to order that one neighbour pay for the construction of a dividing fence when one previously existed would be unfair, unjust and inequitable.

The decision acknowledged that there was, under s 7 of the Act, a liability of owners of adjoining land to fence their…

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 Cullen v Maginn

Details

AGLC: Cullen v Maginn [2011] QCATA 21
Case: [2011] QCATA 21
Decision Date: 14 February 2011

CaseChat Overview and Summary

Cullen brought an action against Maginn to recover the cost of a dividing fence which had been demolished by Maginn. Cullen claimed that Maginn was liable for half the cost of the fence, and sought an order for specific performance of the agreement to replace the fence. Maginn defended the action on the basis that the agreement was not binding. The primary judge dismissed Cullen’s claim and Cullen appealed to the Full Court of the Federal Court. The Full Court held that the appeal was not frivolous or vexatious and that there was a serious question to be tried. The Full Court allowed the appeal and ordered Maginn to contribute to the cost of the fence and to pay Cullen’s costs of the application.

The legal issue before the court was whether Maginn was liable for half the cost of replacing the fence. The court found that there was an agreement between the parties that Maginn would contribute to the cost of replacing the fence. The court found that the agreement was binding and enforceable and that Maginn was liable for half the cost of replacing the fence. The court also found that the agreement was not unconscionable or unreasonable. The court held that the agreement was a valid and binding contract and that Maginn was liable for half the cost of replacing the fence.

Orders

Orders of the court

1. Grant leave to appeal;

2. Allow the appeal; and

4. Further order that the respondents pay to the applicant the sum of $30 in respect of costs of the application within 14 days of the date of this order.

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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