De Francesco v Arthur - [2023] QCATA 134

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

De Francesco & Anor v Arthur & Anor [2023] QCATA 134

PARTIES:

PAMELA LINDA DE FRANCESCO
EUGENE DE FRANCESCO

(applicant/appellant)

v

SAM MCLEAN ARTHUR
SHERIDAN LOUISE ARTHUR

(respondent)

APPLICATION NO/S:

APL049-22

ORIGINATING APPLICATION NO/S:

NDR181-19

MATTER TYPE:

Appeals

DELIVERED ON:

23 October 2023

HEARING DATE:

9 October 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. Leave to appeal refused.

2. Appeal dismissed.

CATCHWORDS:

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – OTHER MATTERS – where the applicants filed a tree dispute application – where the trees were subsequently removed and the remaining issue pertained to a dividing fence – where the applicants claim the tribunal should deal with the application as an dividing fence dispute – whether the tribunal should have dealt with the application as a dividing fence dispute

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – NOTICE – where the application was filed more than 2 months after notice of contribution was given to the neighbours – whether the tribunal erred in not extending the time for the applicants' to file the application for a dividing fence dispute – whether the power of the tribunal under s 61(1)(a) of the QCAT Act to extend a time limit is confined to procedural requirements – where the applicants did not apply for an extension of time to commence a proceeding for a dividing fence dispute

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – COSTS – where the appellants say the learned member’s discretion miscarried in making no order for costs – whether the learned member erred in finding the parties had reached an agreement to resolve the dispute – whether any error in the learned member's finding that the parties had reached an agreement led to error in not exercising the member's discretion to award costs

Queensland Civil and Administrative Act 2009 (Qld), s 61(1)(a)

Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld), s 31(6), s 35(1)(f), s 35(6)

Bull v Porteus [2018] QCATA 100

Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37

Dwyer v Nel [2021] QCA 165
Pai & Anor v Daubney & Anor [2023] QCATA 39
Pollard & Anor v Fitzgibbon & Anor [2019] QCATA 42

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

This appeal is about a tree dispute.
The Tribunal dismissed the application for a tree dispute and dismissed an application for costs by the appellants (the applicants below). The appellants appeal the decision.
The proceeding below
On the respondents’ land grew a stand of golden cane palms (‘the trees’) immediately adjacent to a wooden dividing fence between the parties’ properties (‘the fence’).
The appellants said that the trees had damaged, and continued to damage, the fence. They wanted the trees removed at the respondents’ expense. The appellants commenced the proceeding below.…

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 De Francesco v Arthur

Details

AGLC: De Francesco v Arthur [2023] QCATA 134
Case: [2023] QCATA 134
Decision Date: 23 October 2023

CaseChat Overview and Summary

In De Francesco v Arthur, the applicants filed an application in the Queensland Civil and Administrative Tribunal (QCAT) regarding a dispute over trees and a dividing fence. After the trees were removed, the primary issue became the dividing fence between the parties' properties. The applicants argued that the QCAT should treat the application as a dividing fence dispute and extend the time limit for filing the application, as it was submitted more than two months after the notice of contribution was given to the neighbours. They also claimed that the tribunal should have extended the time for filing the application under section 61(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009. Additionally, the applicants argued that the tribunal's decision not to award costs was an error, as they believed the tribunal miscarried in its discretion by not finding an agreement had been reached between the parties.

The tribunal found that the applicants had failed to establish any error by the tribunal member. The tribunal emphasised that each case must be decided on its merits based on the facts as found and the application of the law to those facts. The tribunal also held that there was no error in dismissing the application, and the tribunal member's discretion in making no order as to costs did not miscarry. Consequently, the appeal was dismissed, and leave to appeal was refused.

The court's reasoning focused on the tribunal's discretion in deciding the case, finding no error in the tribunal member's decision. The tribunal's authority to extend a time limit under section 61(1)(a) of the QCAT Act was considered, but the applicants did not apply for an extension of time to commence a proceeding for a dividing fence dispute. The tribunal's decision not to award costs was also upheld as the tribunal member did not err in finding that the parties had reached an agreement to resolve the dispute.

The final orders were that leave to appeal was refused, and the appeal was dismissed.

Orders

Orders of the court

1. Leave to appeal refused.

2. Appeal dismissed.

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

The appellants say that the learned member failed to treat the dispute like other cases. Presumably this is a reference to s 4(d) of the QCAT Act which provides that the Tribunal must ensure like cases are treated alike. The appellants point to two previous Tribunal decisions which they say involved similar circumstances with quite different outcomes. Every case must be decided on its merits based on the facts as found by the Tribunal and the application of the law to those facts. There is no substance in this submission. Conclusion The appellants have failed to establish error by the learned member. For the reasons set out the learned member’s discretion in making no order as to costs did not miscarry. Nor was there error by the learned member in dismissing the application. Leave to appeal is refused. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

An appeal on a question of law is as of right. An appeal on a question of fact or mixed law and fact requires the leave of the Appeal Tribunal. The principles for granting leave are well established by authority: there is a reasonably arguable case of error in the primary decision;[1] there is a reasonable prospect that the appellant will obtain substantive relief;[2] leave is needed to correct a substantial injustice caused by some error;[3] there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[4]Consideration[1]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (‘QUYD’).[2]Cachia v Grech [2009] NSWCA 232.[3]QUYD (n 1). [4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577.Ground of appeal 1 The relevant enabling Act is the Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld) (‘ND Act’). Chapter 2 of the ND Act deals with dividing fences. Chapter 3 deals with trees. Where a property owner wishes to construct a dividing fence and seeks contribution from the adjoining owner toward the cost of the fence, except in cases where urgent fencing work is required or where no contribution to the cost of the fence is sought,[5] a notice to contribute must first be given to the adjoining owner. Section 31 of the ND Act sets out the requirements for a notice. Importantly, if within 1 month after the notice is given, the adjoining owners cannot reach agreement about the proposed fencing work, either owner may apply to the Tribunal for an order under s 35 of the ND Act. By s 35(6), the proceeding must be commenced within 2 months after the notice is given. [5]Collins v O’Rourke & Anor [2019] QCATA 164. It is appropriate to note here that the Building Act1975 (Qld) (‘Building Act’) deals with dividing fences that are also swimming pool barriers. Part of the dividing fence between the parties’ properties was a barrier in respect of swimming pools located on each property. I will refer to the provisions of the Building Act relevant to the present dispute later in these reasons. For the moment, it is sufficient to observe that the Building Act contains notice provisions largely mirroring those found in the ND Act. The appellants gave to the respondent a notice of contribution pursuant to s 31(1) of the ND Act on 2 October 2019. The proceeding below was commenced on 18 December 2019. The proceeding was not commenced within 2 months from the date the notice was given as required by s 31(6). The appellants say that the learned member could, and should, have ordered that the matter proceed as an application for a dividing fence dispute and should have extended time for the filing of the application, exercising the power conferred by s 61(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) which provides that the Tribunal may, by order, extend a time limit fixed for the start of a proceeding by the QCAT Act or an enabling Act.