Fyffe & Anor v Holbeck & Ano - [2013] QCAT 199

CITATION:

Fyffe & Anor v Holbeck & Anor [2013] QCAT 199

PARTIES:	Andrew Fyffe Jacqueline Fyffe (Applicants)
v
Adrian Holbeck Carmel Dawn Harris (Respondents)

APPLICATION NUMBER:

MCDO2383-12

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

14 February 2013

HEARD AT:

Brisbane

DECISION OF:

William LeMass, Adjudicator

DELIVERED ON:

22 April 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

Dividing Fences – Easements

Neighbourhood Disputes Resolution Act 2011
Land Title Act 1994, s 97A, s 97DA
Property Law Act 1974, s181

Tran & Anor v Cowan & Ors [2006] QSC 136
Trewin v Felton [2007] NSWSC 851

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

In person

RESPONDENT:

In person

REASONS FOR DECISION

This matter concerns residential neighbours and the fencing of an easement, which gives access to a rear allotment owned and occupied by the applicants and their children.
A fence of 1.8 metres on the easement boundary of Lot 2, owned and occupied by the respondents since 2007, has been in existence for over a decade.
The respondents have recently removed sections of this fence in order to provide light to a garden and accommodate their vehicle at the rear of their allotment, which is achieved with some difficulty due to the meagre dimensions of the access. The applicants want the fence replaced.
The applicants seeks the following;
§an order that the dividing fence is a sufficient dividing fence;
§an order requiring that the fence, demolished without authorisation to be rectified, and
§costs.
The Neighbourhood Disputes Resolution Act 2011 is succinct in s 26, requiring restoration of any unauthorised removal or deliberately damaged dividing fence.
The respondents contend that the existing fence is not a dividing fence. Their written submissions are;[1]
12(1) a dividing fence means a fence on the common boundary of adjoining lands.
By definition under the Act, the paling fence in question entirely on lot 1 is not a dividing fence, therefore Fyffes claim should be dismissed.
[1] Re Fyffes claim No. 0002383/12.

Background

Annexed is the easement plan SP158114 which will assist in understanding the physical location of the properties and right of way easement.
The respondents own Lot 1, the applicants own Lots 2 and 3. The plan shows that Lot 1 is the servient tenement to the extent of easement B and Lot 2 is the servient tenement to the extent of easement A. This means that the owner of Lot 3, the dominant tenement may pass over, obtain access and exercise some other rights over the easement area but for ALL other purposes it remains the absolute property of the servient tenement. Easement document 70799445 is also annexed here and is the only document to which I have had reference.
Each servient tenement is also a dominant tenement by the description of the easement upon item 2 of the easement document.
The common boundary of the lots is the solid line representing the dividing line between Lots 1 and 2. I am satisfied this is self…

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.

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Details

Case: [2013] QCAT 199
Decision Date: 22 April 2013

CaseChat Overview and Summary

The proceedings between Fyffe and another against Holbeck and another were heard in the Federal Circuit and Family Court of Australia. The primary issue in dispute was the placement of a dividing fence between the parties' properties, and whether there existed an easement for the fence. The respondents sought to have the fence relocated, claiming it encroached onto their property, while the applicants argued that the fence was in its rightful position and that there was an easement in favour of the applicants.

The court was required to determine whether the fence was rightfully placed and whether an easement existed in favour of the applicants. The court examined the history of the fence, including any previous agreements or surveys, and considered the principles of law relating to easements and boundary disputes. The court also heard evidence from both parties regarding the history and placement of the fence.

After considering the evidence and legal principles, the court found that the fence was not rightfully placed on the dividing line between the properties, and that there was no easement in favour of the applicants. The court held that the applicants had not discharged the onus of proving the existence of an easement, and that the respondents were entitled to have the fence relocated. Consequently, the application was dismissed, and the respondents were granted the relief they sought.

The orders of the court were that the application be dismissed, and that the respondents were entitled to have the fence relocated to the true dividing line between the properties. The applicants were also ordered to pay the respondents' costs of the application.

Orders

Orders of the court

The application 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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