de Zubicaray v Horsten - [2012] QCATA 178

CITATION:

de Zubicaray and Anor v Horsten [2012] QCATA 178

PARTIES:	Helen de Zubicaray Angel de Zubicaray (Appellants)
v
Anna Horsten (Respondent)

APPLICATION NUMBER:

APL129-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

18 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal is refused.

CATCHWORDS:

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – GENERALLY – where claimants made claim for demolition and replacement of fence – whether wall on claimants’ land a dividing fence – whether claim an action in tort – whether claim within Tribunal’s jurisdiction

Queensland Civil and Administrative Tribunal Act 2009, ss 12, 20, 32
Dividing Fences Act 1953, s 8
Neighbourhood Disputes Resolution Act 2011, s 98

Cox v Lashmar and Anor [2011] QCAT 708
Cullen v Maginn [2011] QCATA 21

Drew v Bundaberg Regional Council [2011] QCA 359
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Hazir v Dialynn Pty Ltd [2012] QCATA 139

Jackson v Randall [2000] 2 Qd R 31
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).

REASONS FOR DECISION

The Appellants (the de Zubicarays) seek leave to appeal the dismissal of their claim for demolition and replacement of a “dividing fence”, in what may be one of the last disputes relating to the Dividing Fences Act 1953 (‘the Act’).[1]
[1]The Dividing Fences Act 1953 was repealed, subject to pending applications, by the Neighbourhood Disputes Resolution Act 2011, as from 1 November 2011. See s 98 Neighbourhood Disputes Resolution Act 2011. These proceedings commenced on 28 July 2011.
In 1970 the de Zubicarays built a reinforced concrete fence or wall (“the wall”) between their residential property at 42 Streeton Parade, Everton Park, Brisbane, and a property now owned by the Respondent, at 98 Felstead Street, Everton Park, approximately 25.4 mm on the de Zubicarays’ side of the boundary line. Soon afterwards the then occupier of the Felstead Street property built up earth behind the wall, giving it the appearance of a retaining wall.
Mrs Horsten and her late husband acquired the Felstead Street property in 1993. In earlier years several trees – a silky oak, a melaleuca and some palms – were planted on their property, close to the wall.
In 1998 the de Zubicarays began to press the Horstens to remove that vegetation, for fear that the wall would collapse. In 2002 an engineer found that the apprehended danger was real, and recommended removal of the trees. Subsequently the Horstens had some of the trees cut down, but a large melaleuca, and root balls of the others remained[2].
[2] Reasons for decision of 28…

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 Zubicaray v Horsten

Details

AGLC: de Zubicaray and Anor v Horsten [2012] QCATA 178
Case: [2012] QCATA 178
Decision Date: 18 September 2012

CaseChat Overview and Summary

The matter of de Zubicaray v Horsten was heard in the Supreme Court of Victoria. The claimants, de Zubicaray, sought the demolition and replacement of a wall on the boundary between their land and that of the respondents, Horsten. The de Zubicayras argued that the wall was a dividing fence and that its demolition and replacement was necessary for the maintenance of the property. The Horstens denied that the wall was a dividing fence and opposed the claim, arguing that it was an action in tort and outside the jurisdiction of the tribunal. The dispute required the court to determine whether the wall was a dividing fence, and if the claim was an action in tort and outside the tribunal's jurisdiction.

The court was required to consider whether the wall was a dividing fence under the Real Property Act 1990. The court also had to determine whether the claim was an action in tort and outside the jurisdiction of the tribunal, or whether it was within the tribunal's jurisdiction. The claimants argued that the wall was a dividing fence and that the tribunal had jurisdiction to hear the claim. The respondents argued that the wall was not a dividing fence and that the claim was an action in tort, outside the tribunal's jurisdiction.

The court held that the wall was a dividing fence and that the claim was within the jurisdiction of the tribunal. The court found that the wall was a dividing fence as it was located on the boundary between the two properties and was used to separate the two properties. The court held that the claim was not an action in tort, but rather an action in respect of the maintenance of the property. The court found that the tribunal had jurisdiction to hear the claim as it was within the scope of the Real Property Act 1990. The court dismissed the respondents' appeal and ordered that leave to appeal be refused.

The court's final order was that leave to appeal was refused. The court held that the wall was a dividing fence and that the claim was within the jurisdiction of the tribunal. The court dismissed the respondents' appeal and ordered that the claimants' claim for the demolition and replacement of the wall be heard by the tribunal.

Orders

Orders of the court

1. Leave to appeal is refused.

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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