Fisher v Wenzel & Anor - [2016] QCAT 456

CITATION:

Fisher v Wenzel & Anor [2016] QCAT 456

PARTIES:	Ronald Fisher (Applicant)
v
Christian Wenzel Karina Wenzel (Respondents)

APPLICATION NUMBER:

MCDO733-15

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

3 May 2016

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

DELIVERED ON:

19 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application by Ronald Fisher for minor civil dispute – dividing fences is dismissed for want of jurisdiction.

CATCHWORDS:

REAL PROPERTY- BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING –ADJOINING LAND - where applicant filed 2014 claim to restrain fence demolition - where no dividing fence on common boundary – where no contribution notice given - where Tribunal made fencing orders in 2014 – whether Tribunal had jurisdiction to make fencing orders – whether Tribunal’s fencing orders are a nullity - where applicant filed further dividing fence claim in 2015 – where applicant seeks fencing and other orders including for compensation and injunctive remedies - whether further claim justiciable in the Tribunal – whether contribution notice was valid – whether renewal of fencing orders made in 2014 claimable in 2015 claim - whether Tribunal has jurisdiction to make orders sought

PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS AND TRIBUNALS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where application disclosed no reasonable cause of action – whether applicant’s claim vexatious and an abuse of process – where Tribunal has no power to order compensation for respondents costs and losses in minor civil fencing disputes

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 9, s 11, s 12, s 13, s 15, s 16, s 28, s 42, s 47, s 48, s 49, s 59, s 64, s 102, s 133
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 83
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 12, s 14, s 27, s 31, s 33, s 35, s 37, s 38, s 39, s 91
Building Act 1975 (Qld), s 231B, s 245X, s 245XA, s 245XB, s 245XE, s 245XM, s 245XO, s 245XQ, s 245XY
Acts Interpretation Act 1954 (Qld), s 32A, s 32C, s 48A

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435
PMT Partners Pty Ltd (in Liq) v Australian National Parks & Wildlife Service (1995) 184 CLR 301
Walton v Gardiner (1993) 177 CLR 378
McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road [2013] QCA 168
United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323
Abacus Associates Pty Ltd v Graham Rowley (t/a APL/QBC Partnership) [2015] QCATA 26
Petrie v Peters [2013] QCAT 641
Cordingley v Jarvis [2012] QCAT 701

APPEARANCES:

APPLICANT:

In person

RESPONDENTS:

In person

REASONS FOR DECISION

Introduction

Dividing fence disputes - uniquely inflammatory

Of the gamut of claims, which regularly come before the Queensland Civil and Administrative Tribunal (‘Tribunal’)…

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 Fisher v Wenzel & Anor

Details

AGLC: Fisher v Wenzel & Anor [2016] QCAT 456
Case: [2016] QCAT 456
Decision Date: 19 August 2016

CaseChat Overview and Summary

Ronald Fisher brought a claim against his neighbours, Wenzel and another, seeking to restrain the demolition of a fence on the boundary of their properties. Fisher filed the claim in 2014, and subsequently, in 2015, filed a further claim seeking various orders, including compensation and injunctive relief. The dispute centred on the legality and jurisdiction of the Tribunal to make certain fencing orders and the validity of the contribution notice given by Fisher. Fisher also questioned whether the Tribunal had the power to order compensation for the respondents' costs and losses in these minor civil disputes.

The court had to determine whether the Tribunal had jurisdiction to make the fencing orders in the initial 2014 claim, and if those orders were a nullity. Additionally, the court examined if the Tribunal had jurisdiction to hear the 2015 claim and whether the contribution notice given by Fisher was valid. Another issue was whether the Tribunal could renew the fencing orders made in the 2014 claim in the 2015 proceeding. The court also had to consider whether the Tribunal had the power to order compensation for the respondents' costs and losses in these minor civil disputes.

The court found that the Tribunal did not have jurisdiction to make the fencing orders in the 2014 claim, rendering those orders a nullity. It also ruled that the 2015 claim was not justiciable in the Tribunal. Furthermore, the court determined that the contribution notice given by Fisher was not valid. The court held that the Tribunal lacked the power to order compensation for the respondents' costs and losses in these minor civil disputes. Consequently, Fisher's application for minor civil dispute resolution was dismissed for lack of jurisdiction.

The court ordered that the application by Ronald Fisher for minor civil dispute resolution – dividing fences is dismissed for want of jurisdiction.

Orders

Orders of the court

1. The Application by Ronald Fisher for minor civil dispute – dividing fences is dismissed for want of jurisdiction.

Background

Background to the litigation

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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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