Franchi v Yazdani (No 2)
[2015] QCAT 112
•13 April 2015
| CITATION: | Franchi v Yazdani & Anor (No 2) [2015] QCAT 112 |
| PARTIES: | Tracey Franchi (Applicant) |
| v | |
| Hameed Yazdani Shohreh Yazdani (Respondent) |
| APPLICATION NUMBER: | MCDO1295-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 13 April 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for renewal of the Tribunal’s orders of 11 November 2014 is dismissed. |
| CATCHWORDS: | Non-compliance – standard of fence construction – substantial compliance with Tribunal orders – adequacy of fence as constructed Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 18 February 2015 Ms Franchi made application for renewal of the Tribunal’s orders of 11 November 2014.
Ms Franchi said the fence that was on that date ordered to be constructed had not been completed in accordance with the Tribunal’s orders in that:
· the newly constructed fence was not wholly on the boundary;
· the fence was not wholly 1800 mm high in all sections;
· workmanship was not to BSA standards;
· the fence was insufficiently reinforced;
· steel posts were not sufficiently in the ground;
· the steel posts were not consistently placed; and
· there was a lack of uniformity of steel posts to timber.
Fence construction was to be generally in accord with the Tribunal’s orders of 16 October 2014 and 11 November 2014. The Tribunal’s final order of 11 November 2014 allowed 60 days for completion of what was then a partially constructed fence (all bar 9 m boundary next to the garage on 10 Musgrave Street, Toowong – Yazdani’s property).
Mr Yazdani notified Ms Franchi on 24 November 2014 that the fence was complete and requested payment of Ms Franchi’s contribution of $739.20 pursuant to order 4 of the Tribunal’s orders of 11 November 2014.
Firstly Mr Yazdani says that Ms Franchi’s application for renewal is out of time pursuant to s 133 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and Rules. An application for renewal because of problems with interpreting, implementing or enforcing the Tribunal’s decision must have been made within 28 days, in this instance, of Ms Franchi being given notice of that decision.
Here Mr Yazdani was given 60 days to complete construction of the fence as from 11 November 2014. Construction was finally completed by 24 November 2014. Even if it were to be construed pursuant to s 61 of the QCAT Act that the 28 days for filing the renewal application commenced on 25 November 2014 the renewal application is well out of time.
The first improperly completed and not accepted renewal application was made on 28 January 2015 and the following fully properly completed renewal application was accepted by the Tribunal on 18 February 2015.
There is no reason disclosed here why any such application could not have been made in the 28 days commencing 25 November 2015. Even if it were argued that the timeframe for making a renewal application ran from the expiration of the 60 days post 11 November 2014 then the renewal application is still out of time.
Secondly Ms Franchi’s renewal application criticises the fence construction as follows:
1.It is suggested that there is a distance of some 12 cm between the front peg and commencement of the fence line.
Mr Yazdani stated the new fence on the front boundary had been placed in exactly the same position as the existing fence. He referred to the Tribunal’s decision of 16 October 2014 stating ‘the up to date survey ordered by the Tribunal to be furnished indicated the existing fence to be generally on the common boundary and within acceptable tolerances’. In these circumstances a perceived 12 cm shortfall does not constitute a deviation or variation of consequence.
2.That the construction of the fence is not 1800 mm in all sections. Photos produced by Ms Franchi suggest this to be the case.
The Tribunal’s order of 11 November 2014 was for a ‘flat top picket fence’ to be constructed. A flat top finish appears generally to have been achieved resulting in a variation in ground to fence top height of some 90 mm in places. In the context of the style of fence to be constructed 90 mm is minimal and is not a variation of such magnitude as to constitute non-compliance.
3.Nails projecting through palings.
Three nails are depicted in Ms Franchi’s photos. That does not lead to a conclusion that the fence is not to Queensland Building and Construction Commission standard or that there is some impending danger.
4.Batten screws have not been placed into the steel posts to provide sufficient reinforcement.
Ms Franchi’s photos are far from adequate evidence of insufficiency of reinforcement.
5.Steel posts not more than 20 cm into the ground with half to one bag of concrete per post.
It is not for the Tribunal to descend into the minutiae of construction methods. Nor is it expected that either party would have the expertise or experience to pass comment on the detail of construction methods. The fence appears upright and stable.
6.Distance between posts is about 2.5 metres at some points.
That is simply an unsupported comment.
7. Steel posts are not consistently placed.
Whilst that may detract in some minor way to the aesthetic appeal of the fence it is not a structural defect.
The fence has not been constructed with a great deal of finesse rather built it appears simply to do the job in an adequate manner. There would appear to be no reason to interfere with the structure of the fence.
The renewal application firstly appears to be out of time and secondly does not raise issues of such substance as to warrant any variation of the orders of 11 November 2014.
The application for renewal is dismissed.
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