Ferrier v Beerling - [2023] QCATA 33

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ferrier & Anor v Beerling & Anor [2023] QCATA 33

PARTIES:

STEPHEN FERRIER
KERRY HEATH

(Appellants)

v

MARK WILLIAM BEERLING
JENNIFER SUSAN BEERLING

(Respondents)

APPLICATION NO:

APL129-22

ORIGINATING APPLICATION NO:

MCDO831 of 2020

MATTER TYPE:

Appeals

DELIVERED ON:

20 March 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member PG Stilgoe OAM

ORDERS:

1. Leave to appeal is refused

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where respondent sought compensation from appellant neighbour for construction of dividing timber fence under Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – where the tribunal ordered a timber fence – where the appellant objected to the construction of the timber fence – where the appellant requested a chain link fence – where appellant sought to rely on fresh evidence – where appeal is not and should not be attempt to reargue case – where no error or substantial injustice

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 133, s 134, s 137, s 138, s 142

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 35, s 36

Clarke v Japan Machines (Australia) Pty Ltd [1984] Qd R 404, considered
Pickering v McArthur [2005] QCA 294

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152

Dearman v Dearman (1908) 7 CLR 549

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

Stephen Ferrier and Kerry Heath are joint owners of a property, located at 20 Crescent Road, Eumundi, Queensland. Mark William Beerling and Jennifer Susan Beerling are joint owners of an adjacent property.
The Beerlings served a ‘Notice to contribute to fencing work – Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 – Section 31,’ dated 26 May 2020 on the Ferriers/Heaths. In that notice, the Beerlings asked the Ferrier/Heaths to contribute equally to the cost of constructing a new timber or treated pine fence on their common boundary. The notice was returned to the Beerlings on 26 June 2020, together with a handwritten note stating:
“No, thank you. We already have a fence.”
The Beerlings sought the Tribunal’s assistance to resolve the matter.
The Tribunal ordered that a new dividing fence be erected on the common boundary between the properties of the parties in accordance with the KYMZI Construction quote dated 7 December 2021. The fence construction was to be arranged by the Beerlings. The Ferrier/Heaths were to pay the Beerlings $4071.58 within 14 days of completion of the fence and $61.60 for half of the QCAT filing fee.
The Ferrier/Heaths want to appeal the Tribunal’s decision.
Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually…

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 Ferrier v Beerling

Details

AGLC: Ferrier v Beerling [2023] QCATA 33
Case: [2023] QCATA 33
Decision Date: 20 March 2023

CaseChat Overview and Summary

The appeal in Ferrier v Beerling involves a dispute between the appellant, Ferrier, and the respondent, Beerling, concerning the construction of a dividing timber fence under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The case was initially heard by the Queensland Civil and Administrative Tribunal (QCAT), which ordered the construction of a timber fence. Ferrier objected to this decision and sought a chain link fence instead. The matter now comes before the appeals tribunal on an application for leave to appeal.

The primary legal issues for the appeals tribunal to decide were whether the appellant had a reasonable argument that the QCAT decision was attended by error, necessitating an appeal to correct a substantial injustice. Additionally, the tribunal needed to assess whether the appellant's application for leave to appeal was an attempt to reargue the case with fresh evidence, which should not be permitted. The tribunal also considered whether the appellant had a valid reason for not presenting certain evidence at the initial hearing, and whether the QCAT decision was correct in ordering the construction of a timber fence rather than a chain link fence.

In its decision, the tribunal found that the appellant's application for leave to appeal was not an attempt to reargue the case. The tribunal held that the appellant had not provided a valid explanation for why the fresh evidence was not available at the initial hearing. The tribunal further found that the appellant's objections to the QCAT decision were not grounds for appeal, as they did not raise any errors of fact or law. The tribunal determined that it was not necessary to reconsider the construction features of the fence or to review the quote for a chain link fence. Instead, the tribunal accepted the evidence before it and concluded that the QCAT decision was correct.

ORDERS:
1. Leave to appeal is refused

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

The Ferrier/Heaths want to appeal the Tribunal’s decision. Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2][1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i).[2]Pickering v McArthur [2005] QCA 294, [3]. Finality in litigation is highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[3][3]See Fox v Percy (2003) 214 CLR 118, 128 (Gleeson CJ, Kirby and Gummow JJ). To support their appeal, the Ferrier/Heaths attached a quote from Specialised Property Fencing Pty Ltd dated 9 June 2022. They submit that the KYMZI quote lacks authenticity and does not adequately itemise the costs described. They object to the inclusion of the “plinth” option, as this was not included in original quote. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[4] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the Ferrier/Heaths have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible? [4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 137, 138. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing.[5] The Ferrier/Heaths have provided no valid explanation as to why this material was not available earlier.[6] That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.[5]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.[6]T 1-16, lines 35-40; 1-17, line 1. The Ferrier/Heaths submit that Order 2 be amended, or alternatively dismissed, because it conflicts with Order 2(e) of the directions made on 29 November 2021. That direction required the Beerlings to obtain an updated quote from Specialised Property Fencing. The Ferrier/Heaths therefore ask that Specialised Property Fencing undertake construction of the fence, not KYMZI. In a letter dated 13 February 2022, the Beerlings explained that Specialised Property Fencing were unable to provide an updated quote. The KYMZI quote was provided instead. The Ferrier/Heaths had ample opportunity to address their concerns regarding the KYMZI quote, either prior to or at the hearing, but they did not. The Tribunal accepted the KYMZI quote based on the information before it. This is not a ground of appeal, as no error of fact or law is raised The Ferrier/Heaths want the Appeal Tribunal to “[reconsider] the construction features of the fence quoted” by KYMZI. They submit that the Tribunal erred in ordering the construction of a “timber paling fence” because it did not adequately consult the fencing surveys that were tendered before the hearing. The Ferrier/Heaths want the Tribunal to review their quote for a chain link fence or, alternatively, dismiss the project entirely.

Ratio Decidendi

Legal Principle Established

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