de Zubicaray v Horsten
[2012] QCATA 178
•18 September 2012
| 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 Cox v Lashmar and Anor [2011] QCAT 708 Drew v Bundaberg Regional Council [2011] QCA 359 Hazir v Dialynn Pty Ltd [2012] QCATA 139 Jackson v Randall [2000] 2 Qd R 31 |
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[1]The Dividing Fences Act 1953 was repealed, subject to pending applications, by the Neighbourhood Disputes Resolution Act 2011, as from 1 November 2011.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 February 2012, at [10].
The long-feared event occurred on 30 April 2011, when the wall, or a substantial part of it, collapsed. The de Zubicarays then commenced these proceedings, claiming $24,556 for demolition and replacement of the wall (described as a dividing fence), $1,232 for the engineer’s report, and filing fees.
The contested claim was heard by Mr O’Hanlon, Adjudicator, on 28 February 2012. The vital question, in the Adjudicator’s opinion, was whether the claim was “really a common law claim of nuisance, or whether it falls under the Dividing Fences Act 1953”.[3]
[3] Reasons for decision of 28 February 2012, at [11].
The Adjudicator found, upon the de Zubicarays’ own evidence, that the wall was not positioned on the boundary line, but within their property[4], “to shield water from running on to [their] property from the Respondents’ land”[5]. The barrier on the boundary line was a separate picket fence.[6] Moreover, during the hearing the de Zubicarays’ representative conceded that the picket fence, rather than the wall, “could also be viewed as the dividing fence”[7].
[4] Transcript of proceedings 28 February 2012, pages 2 and 4.
[5]Reasons for decision of 28 February 2012, at [7]. See also transcript of proceedings 28 February 2012, page 3.
[6] Transcript of proceedings 28 February 2012, pages 3 and 5.
[7]Transcript of proceedings 28 February 2012, page 5, reasons for decision of 28 February 2012, at [12].
In the event, the Adjudicator decided that:
“[T]his claim has not been properly brought under the provisions of the Dividing Fences Act 1953 and is really a claim for damages for which this Tribunal has no jurisdiction. ... The claim for such damages should be brought in the Courts system.”[8]
[8] Reasons for decision of 28 February 2012, at [14].
Submissions in support of the application for leave
Concessions at the hearing notwithstanding, the de Zubicarays now contend that the wall is a dividing fence, within the meaning of the Act. (Incidentally, if it is, there might be a question whether so substantial and expensive a “fence” would be appropriate to the locality in question.[9]) They refer to Jackson v Randall[10] for the proposition that a single structure may be both a dividing fence and a retaining wall. No doubt; but that assumes that in one of its manifestations the structure is a dividing fence. On the undisputed evidence in this case, and as found by the Adjudicator, the subject wall is not.[11] There is no suggestion that any of the exceptional circumstances envisaged in the Act[12] apply here. As to the picket fence, the de Zubicarays express willingness to pay 50% of the replacement cost.[13]
[9] Cf Cullen v Maginn [2011] QCATA 21 at [31].
[10] [2000] 2 Qd R 31, 32.
[11]See [7], above; Cullen v Maginn, above, at [24]. In that case, at [33], a paling fence (as distinct from a rock wall on Cullen’s side of the boundary) was held to be a dividing fence. See also Cox v Lashmar and Anor [2011] QCAT 708.
[12] Dividing Fences Act 1953, s 8(3).
[13]Transcript of proceedings 28 February 2012, page 5.
Consideration
I respectfully agree with the Adjudicator’s decision that the claim for the wall is not cognizable under the Dividing Fences Act 1953. I agree, also, that, generally speaking[14], an unliquidated claim for damages in nuisance or negligence[15] is not within the jurisdiction of this Tribunal.
[14]An exceptional case, not now relevant, is an express and specific grant of jurisdiction to entertain claims for damage caused by a motor vehicle: QCAT Act, s 12(4)(d).
[15] Hazir v Dialynn Pty Ltd [2012] QCATA 139 at [8]-[9].
I can find no arguable case that the primary decision contains any error of law, or that it involves any substantial injustice.[16] It is not a case raising a question of general importance.[17] Leave is not to be given where a party simply desires to re-argue the case, on existing or additional evidence. One manifest purpose of a ‘leave’ requirement is to preclude any attempt to conduct a retrial on the merits.[18]
[16]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v Bundaberg Regional Council [2011] QCA 359 at [19].
[17]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
[18] Contrast QCAT Act, s 20 (review jurisdiction).
Leave to appeal must be refused. There is no application for costs, or for transfer to another jurisdiction.
ORDER
Leave to appeal is refused.
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