Galea v Ruffini

[2011] QMC 11

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Galea v Ruffini [2011] QMC 11

PARTIES:

VICTOR GALEA

(complainant)

KATHRYN GALEA

(complainant)

v

RAUL RUFFINI

(defendant)

VIVIENNE RUFFINI
(defendant)

FILE NO/S:

654/09, 1374/11

DIVISION:

Magistrates Court

PROCEEDING:

Complaint for Dividing Fence

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

11 July 2011

DELIVERED AT:

Toowoomba

HEARING DATE:

6 June 2011, 20 June 2011

MAGISTRATE:

Carroll JD

ORDER:

The Court has no jurisdiction to make an order to compel the Respondents to contribute to the cost.

CATCHWORDS:

REAL PROPERTY – FENCING OR BOUNDARIES OF LAND – dividing fence – whether a retaining wall is a dividing fence

Dividing Fences Act 1953(Qld), s 6

Kontikis and Another v Schreiner and Others (1989) 16 NSW LR 706, “Kontikis”

COUNSEL:

Creevey (sol) for the complainants

Hall for the defendants

SOLICITORS:

Creevey Russell Lawyers for the complainants

Clauford Laherty and O’Sullivan for the defendants

Introduction

1. The Complaints in this matter are Victor and Kathryn Galea, “the Galeas” who reside at 3 Wendy Court, Toowoomba and who are the registered proprietors of land and improvements thereon described as Lot 2 on Registered Plan 152677 in the County of Aubigny, Parish of Drayton.

1. The Respondents are Raul Ruffini and Vivienne Ruffini, “the Ruffinis” who reside at 1 Wendy Court, Toowoomba and who are the registered proprietors of land and improvements thereon described as Lot 1 on RP 152677 in the County of Aubigny, Parish of Drayton.

1. The Galeas and the Ruffinis have a common boundary which runs in approximately a north-south direction.

1. The Galeas’ property is west of the Ruffini’s property.

1. On the 2 September 2009 the Galeas served a Notice to Fence on the Ruffinis in which they called on the Ruffinis to pay one half of the cost of replacing “our adjoining” fence with “crib walling” at a total cost of $41,822.  The Ruffinis’ share would be $20,911.  They have resisted this claim by the Galeas.

1. The parties have agreed that the court would determine the matter “on the papers” after receiving both oral and written submissions.

Relevant Documentation

1. The documents to which I have had regard are:-

(a)     Complainant’s summons dated 18 March 2011;

(b)     Affidavits of Victor Galea sworn 19 November 2009 and 12 May 2011;

(c)     Affidavit of Lindsay Reid sworn 13 May 2011;

(d)     Agreed Statement of Facts undated;

(e)     Written submissions on behalf of the Complainants undated;

(f)      Supplementary submissions on behalf of the Complainants dated 14 June 2011;

(g)     Order of the court made on 21 April 2011;

(h)     Toowoomba Court File number 654/09;

(i)      Affidavit of Kirra Orlow sworn 7 October 2009;

(j)      Affidavit of Denis Joseph Brown sworn 17 November 2009;

(k)     Affidavit of Raul and Vivienne Ruffini sworn 17 November 2009;

(l)      Affidavit of Corin Michael Sankey sworn 24 November 2009;

(m)    Affidavit of service of Victor Galea sworn 6 October 2009;

(n)     Affidavit of Vivienne Ruffini sworn 13 May 2011;

(o)     Written submissions on behalf of the Respondents received 6 June 2011;

(p)     Further written submissions on behalf…