Egan v North Goonyella Bodycorp Two

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:               Egan v North Goonyella Bodycorp Two [2021] QCAT 110

PARTIES:                  ANTHONY JAMES EGAN

(applicant)

v.

NORTH GOONYELLA BODYCORP TWO

(respondent)

FILE NO;                   Mackay Q 7/20

MATTER TYPE:       Dividing Fence dispute

DELIVERED ON:     22 February 2021

HEARING DATE:     04 September 2020

DECISION OF:         Member J M Aberdeen (Acting Magistrate)

ORDERS:IT IS ORDERED that a new sufficient dividing fence be erected on the common boundary between the property of the Applicant, at 1/23 Cabbage Tree Road, Andergrove, Queensland, 4740, and the property of the Respondent, at 18 Sutton Court, Andergrove, Queensland, 4740, as follows –

(i)The fence is to be erected on the boundary between the properties;

(ii)The existing fence is to be removed, and the costs of removal are to be shared between the parties on a 50/50 basis;

(iii)A new fence is to be erected consisting of the following –

a.   Treated timber posts, with concrete footings to the required depth;

b.   Horizontal rails are to be of treated timber, three (3) in number, and affixed to the posts;

c.   Palings are to be of treated timber, affixed to the rails;

d.   The parties are to share the costs of supply and erection of the posts, rails, and palings, on a 50/50 basis;

(iv)The Applicant, at his own cost, is at liberty to arrange for a nib wall to be erected, during the course of construction of the timber fence, if he wishes to do so;

(v)The parties are to obtain their own quotations for the timber fence work as above to be performed (that is, the nib wall component is not be included), and to provide copies of all such quotations to the other party;

(vi)The parties are to endeavour to agree to the engagement of a contractor on the basis of the quote most agreeable to both parties;

(vii)The Applicant is to be the point of contact for all contractors engaged in respect of the works involved; and is to advise in a timely way the Respondent, via email to Ms Irene Webb, of all arrangements with respect to the removal and construction of the fences;

(viii)The Applicant and the Respondent shall each allow such reasonable access to their respective properties as may be required by the engaged contractors to enable the above works to be carried out;

(ix)The parties have liberty to apply.

CATCHWORDS:      ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Dividing fence dispute – whether an existing fence is a “sufficient dividing fence” – relevant considerations in determining whether the existing fence is sufficient, so as to require contribution between adjoining owners

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 7, ss 11, 12, 13, s 20(1), ss 35, 36

Dividing Fences Act 1861 (Qld), Preamble, s 5, s 13

Wong v Arthur [2020] QCAT 89 (Member Lumb)

Forestenko & Donnelly v Lloyd [2015] QCATA 154 (Snr Member Stilgoe OAM)

White v Steer [2018] QCATA 30 (Member Howe)

APPEARANCES &   The Applicant appeared…