Fisher v Wenzel (No 1) - [2018] QCAT 261

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Fisher v Wenzel (No 1) [2018] QCAT 261

PARTIES:

RONALD FISHER
and
PAMELA FISHER
(applicant)

v

CHRISTIAN WENZEL
and
KARINA WENZEL

(respondent)

APPLICATION NO/S:

MCDO559-17 (Southport)

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

6 August 2018

HEARING DATE:

24 April 2018

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

1. Leave to extend the time for filing the application for renewal and/or reopening is refused.

2. Leave to amend the application in terms of Appendices A and B filed on 12 March 2018 is refused.

3. The application for renewal and/or reopening is dismissed pursuant to sections 47 and 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where Tribunal made final dividing fence orders including contribution order against applicants for fencing costs

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – where respondents brought enforcement proceedings in Magistrates Court of Queensland against applicants for payment of contribution for fencing costs – where enforcement proceedings adjourned because of application to renew Tribunal orders or reopen proceedings

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants applied for renewal of Tribunal decision or reopening of proceedings – whether grounds for renewal or reopening established

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGEMENT – where applicants applied for extension of time for filing application for renewal or reopening – whether grounds for extension established

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – whether application for renewal of decision or reopening of proceedings frivolous and vexatious and an abuse of process – whether compensation recoverable – whether restorative justice available to respondents

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 48, s 49, s 129, s 130, s 131, 132, s 133,
s 134, s 138, s 139, Schedule 3
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 89
Building Act 1975 (Qld), s 245XN, s 245XQ, s 245XX,
s 245XY

Jones v Dunkel (1959) 101 CLR 298
Walton v Gardiner (1993) 177 CLR 378
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Butler v Simmonds Crowley & Galvin [1999] QCA 475
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
Felix v Winton & Anor [2018] QCATA 84

Fisher v Wenzel & Anor [2016] QCAT 456

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

The Sovereign Islands is described on its website as a unique millionaire’s playground.[1] It is an exclusive waterfront estate at Paradise Point on the northern end of the Gold Coast of Queensland. The Applicants, Mr and Mrs Fisher, and the Respondents, Mr and Mrs Wenzel, are next door neighbours in Excalibur Court.

Mr and Mrs Wenzel own Lot 21 on RP 215035. Mr…

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 (No 1)

Details

AGLC: Fisher v Wenzel (No 1) [2018] QCAT 261
Case: [2018] QCAT 261
Decision Date: 6 August 2018

CaseChat Overview and Summary

The case of Fisher v Wenzel (No 1) arose from a dispute concerning the boundaries of land and the construction of a dividing fence between adjoining properties. The Queensland Civil and Administrative Tribunal had previously made final orders regarding the dividing fence and ordered the applicants, Fisher, to contribute towards the fencing costs. The respondents, Wenzel, initiated enforcement proceedings in the Magistrates Court of Queensland to recover the contribution ordered by the Tribunal. The enforcement proceedings were adjourned pending the applicants' application to the Tribunal to renew the orders or reopen the proceedings. The applicants also sought an extension of time for filing the application and for leave to amend the application.

The primary legal issues the court had to address were whether the applicants had established grounds for renewing the Tribunal's decision or reopening the proceedings, whether the applicants had established grounds for extending the time for filing the application, and whether the application for renewal or reopening was frivolous and vexatious and an abuse of process. Additionally, the court needed to determine if compensation was recoverable and if restorative justice was available to the respondents.

The court found that the applicants had not established the necessary grounds for renewing the Tribunal's decision or reopening the proceedings. The application was deemed to be an abuse of process, as it was seen as a tactical move to delay the enforcement of the Tribunal's orders. The court also found that the application for an extension of time to file the application for renewal or reopening was not supported by sufficient grounds. The court held that the application was frivolous and vexatious, and therefore refused the applicants leave to extend time and to amend the application. Consequently, the application for renewal and/or reopening was dismissed.

In summary, the court refused leave to extend the time for filing the application for renewal and/or reopening and to amend the application. The application for renewal and/or reopening was dismissed under the Queensland Civil and Administrative Tribunal Act 2009. No further orders were made by the court.

Orders

Orders of the court

1. Leave to extend the time for filing the application for renewal and/or reopening is refused.

2. Leave to amend the application in terms of Appendices A and B filed on 12 March 2018 is refused.

3. The application for renewal and/or reopening is dismissed pursuant to sections 47 and 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Fisher v Wenzel (No 1) [2018] QCAT 261
PARTIES:	RONALD FISHER and PAMELA FISHER (applicant)
v
CHRISTIAN WENZEL and KARINA WENZEL (respondent)
APPLICATION NO/S:	MCDO559-17 (Southport)
MATTER TYPE:	Other minor civil dispute matters
DELIVERED ON:	6 August 2018
HEARING DATE:	24 April 2018
HEARD AT:	Southport
DECISION OF:	Adjudicator Alan Walsh
ORDERS:	1. Leave to extend the time for filing the application for renewal and/or reopening is refused. 2. Leave to amend the application in terms of Appendices A and B filed on 12 March 2018 is refused. 3. The application for renewal and/or reopening is dismissed pursuant to sections 47 and 48 of the *Queensland Civil and Administrative Tribunal Act* 2009 (Qld).
CATCHWORDS:	REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where Tribunal made final dividing fence orders including contribution order against applicants for fencing costs PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – where respondents brought enforcement proceedings in Magistrates Court of Queensland against applicants for payment of contribution for fencing costs – where enforcement proceedings adjourned because of application to renew Tribunal orders or reopen proceedings ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants applied for renewal of Tribunal decision or reopening of proceedings – whether grounds for renewal or reopening established PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGEMENT – where applicants applied for extension of time for filing application for renewal or reopening – whether grounds for extension established PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – whether application for renewal of decision or reopening of proceedings frivolous and vexatious and an abuse of process – whether compensation recoverable – whether restorative justice available to respondents Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 48, s 49, s 129, s 130, s 131, 132, s 133, s 134, s 138, s 139, Schedule 3 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 89 Building Act 1975 (Qld), s 245XN, s 245XQ, s 245XX, s 245XY Jones v Dunkel (1959) 101 CLR 298 Walton v Gardiner (1993) 177 CLR 378 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Butler v Simmonds Crowley & Galvin [1999] QCA 475 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Felix v Winton & Anor [2018] QCATA 84 Fisher v Wenzel & Anor [2016] QCAT 456
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented