Edwards-Louis v Jamison

[2014] QCAT 183

CITATION: Edwards-Louis v Jamison [2014] QCAT 183

PARTIES:	Mrs Sandra Edwards-Louis (First Applicant) Mr Jeffrey Louis (Second Applicant)
v
Mr Barry Jamison (Respondent)

APPLICATION NUMBER: MCDO918/12

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: On the papers

HEARD AT: Southport

DECISION OF: Adjudicator Trueman

DELIVERED ON: 5 February 2014

DELIVERED AT: Southport

ORDERS MADE: 1.   The Application to renew a decision filed by the Respondent on 15 January 2014 is refused.

CATCHWORDS:

Dividing Fences – Renewal of Decision

Queensland Civil & Administrative Tribunal Act 2009, s 61, s 133, s 134
Queensland Civil & Administrative Tribunal Rules 2009, s 89

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

1. The respondent made application on 15 January 2014 under section 133(2) of the QCAT Act for the renewal of a final decision. The original claim related to a dividing fence dispute.

2. The respondent alleges that the fence has not been constructed pursuant to the quoted works and that the final decision should be renewed to note that the ‘retaining walls were in order for the boundary fence to be built as per quote’.

HISTORY

1. The claim has a lengthy litigation history being originally filed 19 November 2012 for orders to construct a dividing fence between the parties’ properties, where no fence existed. The matter was listed for hearing on 1 February 2013 and adjourned at the request of the Respondent. The claim was adjourned to 10 April 2013 where the hearing could not proceed as the Respondent raised the issue of the exact location of the boundary line and where the fence should be constructed. An order was made for the parties’ property to be surveyed and a report to be presented to the tribunal and location of the boundary. The order included that the cost of the report to be equally paid by both parties.

2. The matter was listed was heard and determined on 19 June 2013.  The orders were extensive and provided, amongst other things, for the Applicants to arrange for the construction of the fence pursuant to a quotation, and an order that the Respondent must remove brick walls along his boundary that encroached onto the Applicants land and to “make way” for the construction of the boundary fence. The Respondent had agreed to remove the offending brick wall so the dividing fence could be constructed. There was no order made as to the consequence of the Respondent failing to undertake the brick wall removal.

3. On 27 August 2013 the Applicants made application to renew the decision based on the fact that the Respondent refused to remove the brick wall so the dividing fence could be constructed.  The application to renew was successful as despite the Respondent stating that he would undertake the works he had refused to do so. The Respondents evidence in response alleged that the ‘survey identification certificate was inaccurate’, that the brick wall was not ‘encroaching’ onto the Applicants land and that he had ‘taken legal action to drainage problems’ and requested that ‘the fence erection be held over til after the civil action result decision is known’. These were all matters raised by the Respondent at the hearing and all matters were considered and determined.

4. The Applicants application to renew the decision was granted on 10 September 2013 and the order was amended so that the Applicants were permitted to remove the brick wall by cutting it back so as to allow the dividing fence to be constructed in accordance with the orders made on 19 June 2013. A further order was made compelling the Respondent to pay to the Applicant the cost of $143.00 for cutting and removing the brick fence.

5. The Respondent then filed his application to renew the final decision on 15 January 2014 to amend the final orders.

6. The question the tribunal must determine is whether it should renew the decision of the Adjudicator and the final order made on 19 June 2013 and the amended order made on 10 September 2013.

LEGISLATION

1. A party may apply to renew a final decision if there are problems interpreting, implementing or enforcing it. If the Tribunal renews a decision, it may make any other appropriate decision that could have been made by the Tribunal at the time the original decision was made.[1]  The renewed decision is substituted for the original decision.[2]

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 134(2)(b).

   [2] Ibid s 134(3).

2. The orders made by the Adjudicator on 19 June 2013 and amended orders made on 10 September 2013 must be found to be liable to potential conflicting interpretations before the tribunal would disturb those orders.

3. The provision that enables the Tribunal to renew its decision[3] is a procedural one, in the sense that it governs the procedure by which the Tribunal may remake or vary orders that have already been made.

   [3] Ibid s 134.

4. If the Tribunal is to renew the decisions in that way, it must only do so if it will give effect to the Adjudicators apparent intention of the orders that were made.

5. The tribunal must consider an application for renewal in the context that if it is not possible for the tribunal's final decision in a proceeding to be complied with[4]; if there are problems with interpreting, implementing or enforcing the tribunal’s final decision in a proceeding[5], then an application for renewal should be granted.

   [4] Ibid s 133(1)(a).

   [5] Ibid s 133(1)(b).

6. In this case, if the Respondent was disgruntled and unhappy with the orders that were made by the Adjudicator on 19 June 2013, he had the option of filing an application to seek leave to appeal. If the Respondent did not agree with the decision to allow the Applicants’ application to renew the final decision on 10 September 2013 he could also have appealed that decision, however he did not. The Respondent did not appeal either of the decisions made in the dividing fence claim but now seeks to amend the final decision by an application to renew the decision. The orders made for the construction of the dividing fence, in totality including the amended orders were as follows:

   1.That the Respondent must cut away the brick walls along the boundary fence line to allow sufficient access for the dividing fence to be constructed in accordance with the surveyors report prepared by NB Lillehagen Surveyors dated 11/6/2013.

   2.Should the Respondent fail to comply with Order 1 herein the Applicants are permitted to cut back the brick walls to the extent to allow the construction of the dividing fence at a cost of $143.00, such costs to be paid for by the Respondent.

   3.A new dividing fence is to be erected on the common boundary between the properties of the parties located between 96 and 98 Treeview Drive, Burleigh Waters.

   4.The fence is to be constructed in accordance with quote dated 19/6/2013 by Kendo Fencing and Landscaping.

   5.The fence construction is to be arranged by the Applicants.

   6.The construction of the fence is to be completed within 60 days.

   7.The Respondent is to pay to the Applicants the sum equivalent to one half of the cost of the fence construction but not the cost of the installations of the sleepers.

   8.The Respondent is to pay to the Applicant the sum of $1,116.05 within 2 days of being notified in writing by the Applicants of the completion of the fence.

   9.The Applicants are liable to pay for the full cost of the sleepers at the quoted cost of $299.20.

7. The orders appear to be concise and clear and unequivocal who is responsible to organise the fence and the contributions to be paid by whom.

8. On the grounds raised by the Respondent that the orders are not clear I find that the Respondent has failed to provide sufficient evidence or proof that the orders are not clear, or incapable of being interpreted, implemented or enforced. The only further evidence that the Respondent seeks to rely upon is that the fence has not been built in accordance with the quote. I cannot determine if that is the case and this is not the appropriate forum to canvas such matters. I note that in response to the Respondent’s application for renewal the Applicants filed submissions and attached a report from Kendro Fencing and Landscaping dated 30/10/2013. The report states:

   We at kendo fencing and Landscaping, have completed the supply and erection of your border fence between property numbers 96 and 98 Treeview Drive, and have done what was necessary to do during the building process, in accordance with council rules, regulations and guidelines. 

9. The Applicants provided photos and state that the fence has been completed and is a ‘very professional job, we are very happy with the construction of the fence’. I find from the photos I tend to agree with the Applicants that the fence is professional, solid, appears sound and aesthetically pleasing.

10. The Applicants further submit that the Respondent has failed to pay for the fence, the concrete wall works nor paid his half of the cost of the surveyors report. The Applicants state that the parties are embroiled in enforcement proceedings in the Magistrates Court. The claim that the fence was completed on 18 October 2013 and some 89 days after the fence was completed, the Respondent then filed the application to renew the decision. The Applicants claim that the application was brought in retaliation to the Applicants seeking enforcement proceedings for payment of the fence works. I find that the Applicants’ submission in that regard has merit.

11. The legislative requirements are that any application for the renewal of a final decision must be made within 28 days after the relevant day.[6]  In this case the application has therefore been brought out of time.

    [6] Ibid s 89.

12. The tribunal may, by order waive compliance with another procedural requirement under this Act, an enabling Act or the rules in this case.[7]

    [7] Ibid s 61(1)(c).

13. While the tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.[8]

    [8] Ibid s 61(3).

14. The tribunal may act under to waiver compliance with a procedural requirement either on the application of a party or potential party to the proceeding or on its own initiative.[9]

    [9] Ibid s 61(4).

15. In this case it would be unreasonable to extend time to the Respondent to bring the application for renewal in the circumstances as the tribunal has  found that the order made on 19 June 2013 and amended on 10 September 2013 is not vague, unclear, nor are there difficulties in interpreting, implementing and enforcing the order.

FINDINGS

1. For the reasons articulated, I find that the application to renew the final decision must fail on two grounds. Firstly, it being filed out of time and that even if there was a waiver of procedural requirement and time was extended, the claim for renewal would fail in any event. Secondly, there is no evidence that the fencing orders are incapable of being interpreted, implemented or enforced. In fact, from the Applicants’ submissions and photos and evidence, I find that the fencing orders have been fulfilled, complied with and the fence constructed as ordered. I dismiss the Respondent’s claim.

ORDERS

1. THAT the Application to renew a decision filed by the Respondent on 15 January 2014 is refused.