Fisher v Wenzel

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.