Fisher v Wenzel (No. 2) - [2018] QCAT 298

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Fisher v Wenzel (No. 2) [2018] QCAT 298

PARTIES:

RONALD FISHER
and
PAMELA FISHER
(applicants)

v

CHRISTIAN WENZEL
and
KARINA WENZEL

(respondents)

APPLICATION NO/S:

MCDO149-18 (Southport)

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

7 August 2018

HEARING DATE:

24 April 2018

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

The application filed on 26 February 2018 is dismissed.

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

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants subsequently applied for orders for prevention of demolition of part of a dividing fence and rectification work – whether application made out

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13(1)
Building Act 1975 (Qld), s 245XV, s 245XJ, s 245XQ

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Ronald Eric Fisher (Mr Fisher) filed an application for minor civil dispute – dividing fences with the Tribunal on 26 February 2018 against the respondents, Christian Wenzel and Karina Wenzel (Mr and Mrs Wenzel), next door neighbours of Mr and Mrs Fisher in Excalibur Court at The Sovereign Islands. Mr and Mrs Wenzel are registered owners of Lot 21 on RP 215035 at Excalibur Court.
Mr Fisher is, and at all material times was, co-registered owner of Lot 22 on RP 215305 together with his wife, Pamela Fisher. Mrs Fisher is therefore an interested person potentially affected by this decision so I made an order joining her as an applicant in the proceedings on 19 April 2018. I heard oral evidence from the parties on 24 April 2018 when some documents additional to those already filed were tendered.
There is a pool on each of the properties. The provisions of Part 2A – Neighbours’ rights and responsibilities for particular dividing fences of Chapter 8 of the Building Act 1975 (the Building Act) therefore apply in this case.
In particular, though not referred to or relied on by Mr and Mrs Fisher in their application, the following provisions of the Building Act are potentially relevant: section 245XV(4) for rectification works, section 245XJ for compensation for damage to a dividing fence, section 245XQ(1)(k) for compensation for destruction of a dividing fence, and section 245XQ(1)(l) for the undertaking of matters necessary for the administration of Part 2A of Chapter 8.
In their application filed on 26 February 2018, Mr Fisher, and Mrs Fisher by joinder, applied for orders to be made for prevention of construction or demolition of a dividing fence without authorisation, for rectification work, for the cost of rectification, and for payment of the filing fee of $25.45.
Mr Fisher himself also applied on 26 February 2018 for an interim order restraining Mr and Mrs Wenzel from demolishing or altering a dividing fence. A Member of the Tribunal refused that application.
Mr and Mrs…

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. 2)

Details

AGLC: Fisher v Wenzel (No. 2) [2018] QCAT 298
Case: [2018] QCAT 298
Decision Date: 7 August 2018

CaseChat Overview and Summary

In the matter of Fisher v Wenzel, the parties were contesting issues concerning the boundaries of their adjoining properties in Queensland. The dispute primarily involved the placement and maintenance of a dividing fence, as well as the costs associated with its construction and upkeep. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT) and subsequently appealed to a higher court.

The primary legal issues the court had to address were whether the applicants were entitled to orders preventing the demolition of part of the dividing fence and mandating rectification work. The applicants argued that the fence was incorrectly placed according to the tribunal’s previous orders and sought rectification and an injunction against its demolition. The respondents contended that the tribunal's orders were final and should not be altered, and that any further action by the applicants was an abuse of process.

The court reviewed the previous orders issued by QCAT, which specified the final placement of the dividing fence and the respective contributions to its cost. It found that the applicants' subsequent application for rectification and prevention of demolition was an attempt to reopen a matter that had already been conclusively determined by QCAT. The court held that the tribunal’s orders were binding and final, and any further action by the applicants to alter those orders was not permissible. The court dismissed the application, reinforcing the finality of tribunal decisions on property boundaries and associated fencing matters.

The court's final order was that the application filed on 26 February 2018 was dismissed, and no further action could be taken by the applicants to alter the previous QCAT orders regarding the dividing fence.

Orders

Orders of the court

The application filed on 26 February 2018 is dismissed.

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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CITATION:	Fisher v Wenzel (No. 2) [2018] QCAT 298
PARTIES:	RONALD FISHER and PAMELA FISHER (applicants)
v
CHRISTIAN WENZEL and KARINA WENZEL (respondents)
APPLICATION NO/S:	MCDO149-18 (Southport)
MATTER TYPE:	Other minor civil dispute matters
DELIVERED ON:	7 August 2018
HEARING DATE:	24 April 2018
HEARD AT:	Southport
DECISION OF:	Adjudicator Alan Walsh
ORDERS:	The application filed on 26 February 2018 is dismissed.
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 ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants subsequently applied for orders for prevention of demolition of part of a dividing fence and rectification work – whether application made out Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13(1) Building Act 1975 (Qld), s 245XV, s 245XJ, s 245XQ
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented