Fisher v Wenzel

Case [2019] QCAT 295

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Fisher v Wenzel [2019] QCAT 295

PARTIES:

RONALD ERIC FISHER
and
MAREE FISHER

(applicants)

v

CHRISTIAN EDWIN WENZEL
and
KARINA LEE WENZEL

(respondents)

APPLICATION NO/S:

MCDO456-18

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

27 September 2019

HEARING DATE:

26 October 2018; 14 February 2019; 29 May 2019

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

1.   The period of 1 month for negotiation before filing an Application for a minor civil dispute - dividing fences in this Tribunal is abridged to 17 June 2018.

2.   The claim for the cost of rendering and painting the pool pavilion wall on the Respondents property facing section 1 of the common boundary of the parties adjoining properties is dismissed.

3.   The claim and the application to amend the claim for contribution and an order for a special purpose pier and elliptical arch fence on section 1 of the common boundary of the parties adjoining properties is dismissed.

4.   The claim for the outlay for the invoiced costs of SLN Consulting Structural Engineers for a site inspection and report relating to the proposed special purpose pier and elliptical arch fence on section 1 of the common boundary of the parties adjoining properties is dismissed.

5.   The claim for a height reduction order and for the cost of reducing the height of the nib wall constructed on section 2 of the common boundary of the parties adjoining properties is dismissed.

6. The claim for the cost of the block wall dividing fence constructed on section 3 of the common boundary of the parties adjoining properties is dismissed.

7.   The claim for an order for an aluminium louvre fence and for the cost of supply and construction of it on section 4 of the common boundary of the parties adjoining properties is dismissed.

8. The Application for minor civil dispute – fencing claim filed on 18 June 2018 is dismissed on the merits and pursuant to sections 47(2) and 48(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

 CATCHWORDS:

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where long history of fencing disputation between neighbours at The Sovereign Islands – where multiple applications previously filed by applicants against respondents  – where only one application resulted in fencing orders by consent – where all other applications failed and were dismissed – where contribution ordered in favour of respondents against applicants not paid - where respondents took enforcement proceedings against applicants in magistrates court – where reopening/renewal application of applicants dismissed

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – fencing dispute – where applicants filed further application for fencing orders and contribution or indemnity from respondents – where new application predicated on fencing notices for four contiguous sections of common boundary of adjoining waterfront properties – whether costs claim for rendering and painting pool pavilion wall on respondents property competent –…

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AGLC
Fisher v Wenzel [2019] QCAT 295
Case
[2019] QCAT 295
Decision Date

CaseChat Overview and Summary

The case of Fisher v Wenzel involves a long-standing dispute between neighbours in The Sovereign Islands regarding the boundaries and fencing of their adjoining properties. The applicants, Mr and Mrs Fisher, filed an application with the Queensland Civil and Administrative Tribunal (QCAT) seeking various fencing orders and contributions from the respondents, Mr and Mrs Wenzel. The applicants' claims included requests for rendering and painting of a wall on the Wenzels' property, a special purpose pier and arch fence, height reduction of a wall, and an aluminium louvre fence. The respondents opposed the application, arguing that it was an abuse of process, oppressive, and vexatious. The tribunal considered several issues, including the jurisdiction over the timing of the application, the merits of the claims, and the possibility of costs being awarded due to the abuse of process.

The tribunal first addressed the procedural issue of whether it had jurisdiction to consider the application, given that it was filed outside the one-month negotiation period prescribed by statute. The tribunal considered whether this requirement was substantive and fixed or procedural and variable. The tribunal found that it could order an abridgement of the time period for filing the application on its own motion where appropriate, and subsequently abridged the time period to 17 June 2018. The tribunal then assessed the merits of the applicants' claims, finding that all but one of the claims had no reasonable prospect of success. The only arguable claim was for an aluminium louvre fence on section 4 of the common boundary, but this was undermined by the construction of the same fence in close proximity. The tribunal also found that the fencing order was impractical and of no utility. Additionally, the tribunal found that the application was an abuse of process, oppressive, and vexatious, as the applicants deliberately caused the respondents unnecessary inconvenience by filing the application when the respondents would not waive the benefit of a contribution order from a previous case.

In light of the findings that the application was an abuse of process, oppressive, and vexatious, the tribunal dismissed the application on the merits and pursuant to sections 47(2) and 48(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The tribunal dismissed all of the applicants' claims, including the claim for the cost of rendering and painting the pool pavilion wall, the claim for a special purpose pier and elliptical arch fence, the claim for height reduction of a wall, and the claim for an aluminium louvre fence. The tribunal also found that the applicants' conduct was oppressive and vexatious, and that they deliberately caused the respondents unnecessary inconvenience by filing the application when the respondents would not waive the benefit of a contribution order from a previous case. The tribunal did not award costs, as it found that the applicants' conduct did not result in unnecessary disadvantage to the respondents.

In conclusion, the tribunal dismissed the applicants' application for fencing orders and contributions from the respondents. The tribunal found that the application was an abuse of process, oppressive, and vexatious, and that the applicants had deliberately caused the respondents unnecessary inconvenience. The tribunal also found that all of the applicants' claims had no reasonable prospect of success, except for the claim for an aluminium louvre fence on section 4 of the common boundary, which was undermined by the construction of the same fence in close proximity. The tribunal did not award costs, as it found that the applicants' conduct did not result in unnecessary disadvantage to the respondents.

Orders

Orders of the court

1. The period of 1 month for negotiation before filing an Application for a minor civil dispute - dividing fences in this Tribunal is abridged to 17 June 2018.

2. The claim for the cost of rendering and painting the pool pavilion wall on the Respondents property facing section 1 of the common boundary of the parties adjoining properties is dismissed.

3. The claim and the application to amend the claim for contribution and an order for a special purpose pier and elliptical arch fence on section 1 of the common boundary of the parties adjoining properties is dismissed.

4. The claim for the outlay for the invoiced costs of SLN Consulting Structural Engineers for a site inspection and report relating to the proposed special purpose pier and elliptical arch fence on section 1 of the common boundary of the parties adjoining properties is dismissed.

5. The claim for a height reduction order and for the cost of reducing the height of the nib wall constructed on section 2 of the common boundary of the parties adjoining properties is dismissed.

6. The claim for the cost of the block wall dividing fence constructed on section 3 of the common boundary of the parties adjoining properties is dismissed.

7. The claim for an order for an aluminium louvre fence and for the cost of supply and construction of it on section 4 of the common boundary of the parties adjoining properties is dismissed.

8. The Application for minor civil dispute – fencing claim filed on 18 June 2018 is dismissed on the merits and pursuant to sections 47(2) and 48(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Background

Background to the litigation

The copy of the annotated survey plan is marked as exhibit T1 and the photocopied photographs are marked as exhibits T1A through to T1I. The letter T connotes a Tribunal exhibit.Agreed Facts The parties agreed at the hearing that: (a)the copies of photographs T1A together with T1B and T1E were of section 1 annotated by Mr Fisher on the survey plan and the backdrop;[18] (b)the copies of photographs T1C and T1D were of section 2 and the backdrop;[19] (c)the copies of photographs T1F and T1H were of section 3 and the backdrop;[20] (d)the copy of photograph T1G depicted a portion of a waterside fence in section 4;[21] and (e)the copy of photograph T1I depicted a clear glass panel taken on the boardwalk looking south and showing the border between the property of Mr and Mrs Fisher and their next-door neighbour on that side.[22][18]Transcript 14 February 2019, T 1-3 lines 20 to 29, T 1-4 lines 3 to 21 and lines 41 to 46, and T1-5 lines 1 to 10.[19]T 1-4 lines 3 to 40.[20]T 1-5 lines 11 to 26.[21]T 1-5 lines 19 to 26.[22]T 1-5 lines 39 to 46.1 - Form 39 Notice to Contribute 29 May 2018 The Form 39 Notice to Contribute[23] dated 29 May 2018, together with an attachment, referred to sections 1 and 2 of the common boundary of the adjoining properties which are indicated on the copy of the plan of survey which is T1. [23]Published pursuant to section 245XL(1) of the Building Act 1975 (Qld). It gave notice of only fourteen days for the proposed start date of 13 June 2018 for the works. One month is required where there is a pool on each of two adjoining properties. No construction works have taken place in the meantime.Special Purpose Fence Proposed Section 1 of the attachment to the Form 39: (a)referred to a ‘special purpose’ fence described as approximately 9m long and 3m high to be constructed on the common boundary with no part closer than 40mm to the existing pool pavilion constructed on 21 Excalibur Court using 150 or 200 series masonry concrete reinforced filled block work, the lower portion of which to be constructed with 4 masonry reinforced concrete filled piers which ‘may’ have lightweight infill panels and or horticultural trellis; (b)stated that the upper portion of the structure is to be constructed in concrete filled reinforced masonry formed elliptical arches with the ‘fence’ to be partly rendered and painted to match the existing dividing fence vertical face of number 19 to the west and partly clad in sandstone to match the existing dividing fence vertical face of number 19 to the east;(c)stated that the costs of the proposed dividing fence are far in excess of the cost of a sufficient dividing fence and that Mr and Mrs Fisher will contribute all costs associated with the works for the piers and elliptical arches in excess of the cost for a sufficient dividing fence used in the neighbourhood; and (d)referred to quotations attached. Quotations The quotations attached were by:(a)Exclusive Rendering and Painting dated 25 June 2017 for $1,031.00 for skim rendering and painting the back of the pool pavilion wall on the Wenzel property facing the Fisher property; (b)A Plus Brickwork Pty Ltd dated 20 June 2017 for $4,405.50 for a ‘panel 9m l x 1.8m h blocked up along the side of the pool in front of the existing block wall;’ and (c)Concrete Sawmilling & Core Drilling dated 14 June 2017 for $467.50 for height reduction of an existing dividing fence section referred to by the parties as a ‘nib wall’ on the common boundary between the back of the pool pavilion wall and the back of the pool shed wall, both of which were located on the Wenzel property parallel to the common boundary.Money Claim for sections 1 and 2 of the Common Boundary

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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