Galea v Ruffini
[2011] QMC 11
•11 July 2011
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
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.
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.
The Galeas and the Ruffinis have a common boundary which runs in approximately a north-south direction.
The Galeas’ property is west of the Ruffini’s property.
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.
The parties have agreed that the court would determine the matter “on the papers” after receiving both oral and written submissions.
Relevant Documentation
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 of the Respondents received 20 June 2011;
The Principal Issue
The parties agree that a retaining wall as proposed by the Complainants be constructed along the western side of the common boundary, i.e. within the Complainant’s land. The issue is whether that retaining wall is a “dividing fence” as that term is defined in the Dividing Fences Act 1953 “the Act”.
Relevant Statutory Provisions
Section 6 of the Act defines various words and expressions.
I am satisfied that the Complainant’s land and the Respondent’s land are “adjoining lands” for the purpose of the Act.
The term “dividing fence” is defined in the Act to mean -
dividing fence means “a fence separating the adjoining lands of different owners, whether the adjoining lands are wholly or only partly separated thereby and whether the fence is on the line of or, in an appropriate case, on a line on the common boundary of the adjoining lands or on a line other than the line of or a line on the common boundary, or partly on any one of those lines and partly on the other or others.”
The term “fence” is defined in the Act to mean –
fence means a “structure of posts and boards, palings, rails, galvanised iron, metal, or wire, or a wall, ditch, or embankment, or a combination of any of these, enclosing or bounding land, and includes any foundation, foundation wall, or support reasonably necessary for the support and maintenance of the fence, but does not include a wall which is part of a house or other building.”
Section 8 of the Act provides, relevantly, that an owner who wants to compel the owner of adjoining land to join or contribute to the construction of a dividing fence must serve the adjoining owner with a written notice to fence.
Section 9 of the Act provides, relevantly, that if within one month of service of any notice to fence the parties do not agree as to the construction of the proposed fence, the Magistrates Court may, upon application of either party make orders determining, inter alia, the kind of fence to be constructed and the proportions in which the parties are to contribute towards the construction of the fence.
Expert Witnesses
I refer to the affidavit of Denis Joseph Brown and his report of 15 November 2009 which is “Exhibit A” thereto. I accept that Mr Brown is a registered professional engineer and is an expert for the purpose of these proceedings. I refer to the affidavit of Lindsay Reid of 13 May 2011 and to his report of 26 May 2009 being Exhibit LR2 thereto. I am satisfied that Mr Reid is an experienced Structural and Geotechnical Engineer and is an expert for the purpose of these proceedings.
Relevant history
I accept the evidence of Mr Brown at paragraph 2.0 “WALLS AND SITE DESCRIPTION – HISTORY” of his report contains an accurate history of the development of the two parcels of land which is relevant for the purpose of these proceedings.
Between 1977 and 1998 when the Galeas acquired their property, their land had been owned by various persons including Sid and Ethel Schurmann and John (Tony) and Joy McCafferty.
I set out below that portion of Mr Brown’s report detailing the relevant history of the parcels of land –
“The Wendy Court subdivision was undertaken in the late 1970’s creating the Lots (1 on RP 152677 Ruffini & 2 on RP 152677 Galea), … Ruffini’s have lived in their residence (No 1 Wendy Court) since it was constructed by Reg McKay, builder, in the late 1970’s. The residence is of brick veneer construction with internal walls being non-load bearing timer studs with plasterboard finish. The Galea residence was constructed by the same builder but prior to the Ruffini residence and is of similar construction. When the site works were undertaken for the Galea residence the builder undertook the ‘cut’ which became the base for the Ruffini residence at the same time as earthworks were undertaken for the Galea residence,
…
There is a considerable difference in level between the ground floor of the Ruffini and Galea residence. This difference in level was originally accommodated by the builder Reg McKay providing a basalt stone retaining wall on the Ruffini allotment in the solid cut area … and a timber sleeper wall generally within the Galea allotment, quite probably in loose un-compacted fill. This sleeper wall was constructed prior to the completion of the Ruffini dwelling by the builder Reg McKay apparently as a small garden varying in height from 600 to 800 mm and referred to in this report as “First Tier” wall ... .
In the early 1980’s the Schurmanns undertook additional landscaping and levelling in their allotment adjacent to the ‘first tier timber wall’ to create additional level area and further gardens. This timber wall I have called the “second tier wall” in my report. The effect of this work is that additional pressure is placed on all lower walls and they effectively become subject to ‘surcharge loading’ from the additional weight of soil above ….
In the late 1980’s the McCaffertys undertook additional building works extending the Galea residence to the East to create a ‘carport’ and additional level area. This work further imposed surcharge on the existing and lower level retaining walls (both the first & second tier and the Ruffini stone walls).
In the late 1990’s the Galeas further imposed additional surcharge and loading on the lower walls through their action of building in and enclosing the ‘McCafferty carport’ and creating habitable spaces at the ground floor level and a roofed balcony & deck at the first floor level … .”
Findings
I accept that the Ruffini’s land is approximately 2.5 metres below the level of the Galea’s land.
I accept the Identification Survey conducted by Owr Surveyors on 16 November 2009, Appendix B to Mr Brown’s report accurately identifies the position of the common boundary between the two adjoining parcels of land and the location of the tier one wall. I accept that the tier one wall is in a dilapidated and dangerous condition and has failed. That wall must be replaced as a matter of urgency due to possible damage to both the Complainants’ and Respondents’ properties.
I accept the opinion of Mr Brown that movement experienced by the tier one and tier two walls is such that the top of the tier one wall is leaning over the Ruffini’s land by more then 400 millimetres in the sense that the base of the wall is 120 millimetres west of the boundary and the top of the wall is 280 millimetres east of the boundary.
I accept Mr Brown’s opinion at paragraph 4 of his report that “the movement observed in these tier ‘one & two’ timber retaining walls is consistent with that of walls constructed of inappropriate design and material for the now intended purpose, which is that of providing support and stability for the residence and subsequent extensions. …”
I accept Mr Brown’s opinion at paragraph 5 of his report that the “retaining wall system used on the Galea site is inadequate for the conditions that now exist on site”.
I accept Mr Brown’s opinion at paragraph 7 of his report that “while the original designs are inadequate for the soils encountered and the loads now imposed, particularly as the various changes have been undertaken by a succession of owners, there is an urgent need to rectify the situation and reinstate the support to the Galea property to ensure that the Ruffini property is not damaged. …”
I accept the opinion of Mr Reid at page 1 of his report of 26 May 2009 that the two timber walls situated above the stone pitched wall have failed and are currently in the process of rotating forward.
I accept the opinion of Mr Reid on page 2 of his report that “a new wall or series of new engineer designed walls is required to be constructed as a matter of urgency. The urgency of this situation reflects the need to protect the house and any plumbing lines which may be suited in this vicinity from damage.” The “house” referred to therein is the Galea’s house.
I accept the opinion of Mr Reid at the bottom of page 2 of his report that “the proposed new wall when constructed will substantially improve the stability of the embankment between these two properties which is currently very poorly retained” and at paragraph iii on page 3 of his report that “the proposed new wall is required as a matter of urgency in order to avoid subsidence and associated damage to the house”. Again, the reference to “the house” is a reference to the Galea house.
There is agreement between the parties that a new wall must be constructed to replace the existing tier one and tier two walls.
The question of whether a retaining wall is “dividing fence” for the purpose of the Dividing Fences Act (New South Wales) was considered in Kontikis and Another v Schreiner and Others (1989) 16 NSW LR 706, “Kontikis” .
The definitions of “fence” and “dividing fence” in the New South Wales Act are, for all practical purposes, identical with the corresponding definitions in the Queensland Act.
In Kontikis, the Local Court had ordered that a wooden boundary fence be erected on top of a retaining wall and that the adjoining owners pay one half of the costs thereof. The Kontikis’ appealed that decision to a single Judge of the New South Wales Supreme Court who dismissed the appeal. They then appealed to the Court of Appeal. Mahoney J wrote the judgment of the Court.
In determining whether a retaining wall can be a “fence” for the purpose of the Act, he suggested that “The wall must not merely bound land in fact but it must be there functionally or essentially for that purpose”. (Page 709)
Mahoney J then adopted the reasoning of McLelland J in Carter v Murray [1981] 2 NSW LR 77 where one of the parties to the action sought an order requiring contribution to the repair of a wall and it was submitted that the wall was not a “fence” within the Act. At page 79A of the report, His Honour said –
“In my opinion the word ’separating’ in the definition of ‘dividing
Fence’ has a functional connotation, which renders it necessary to
examine the physical characteristics and function of the fence in question
in relation to the physical characteristics of the rest of the land on either
side thereof in order to determine whether the statutory criterion is
satisfied. The concluding words of the definition of ‘dividing fence’
which contemplate a dividing fence otherwise than on the common
boundary seem to me to support such a connotation in the present case.
The retaining wall provides structural support for other material on and
below the surface of No 30 and thus assists to maintain the surface of
No 30 at its present level, but it seems to me that it does not ‘separate’
the two parcels of land in what I consider to be the relevant sense of
impeding egress or ingress to or from either property.The retaining wall should, in my opinion, be treated as an integral part
of the sub-surface of No 30. The thing that in the relevant sense separates
No 30 and No 34 is the vertical drop of two or three metres between their
respective levels at or near the common boundary, rather than the
retaining wall, notwithstanding that the latter happens to be where the
vertical drop occurs.”
I adopt the comments of Mahoney J at page 710 of the report where he says –
“What is in issue in the determination of the meaning of ‘fence’ is whether the structure or the wall is a structure or wall ‘enclosing or bounding land’ in the sense referred to in the definition of ‘fence’.
I agree with the view of McLelland J that in the definition of ‘dividing fence’ the verb there used, ‘separating’, is to be seen as having ‘a functional connotation’; similarly, in my opinion, ‘enclosing or bounding’ has a functional connotation. The mere fact that a particular structure or wall happens to be upon the boundary of land does not, in my opinion, mean that it is for the purposes of the Act a ‘fence’. The term ‘fence’ is, I think, limited to a structure or wall which, being on the boundary, is there for the purpose of ‘enclosing or bounding’ the relevant land.”
I refer to the comments of Mahoney J at page 711 of Kontikis “… the court would, I think, look to the real reason why the particular wall was or was to be erected, that is, whether the particular wall or kind of wall was chosen to bound land or whether it was chosen because it was necessary or appropriate to perform another function, for example, of retaining A’s land. Where the reasons for choosing that wall or that kind of wall be not to bound but to support or retain the land, then the wall would not fall within the definition. The wall to be erected might in fact fulfil two purposes; it might retain the land and might mark out the boundary between it and other land. But, for the purposes of decision whether the wall chosen was with the Act, the court would ask: Why was this wall or this kind of wall chosen rather than some other wall? If the reasons be to retain rather than to bound the land, it would not be within the definition.”
In my view the “real reason why [the] particular wall [is] to be erected” is to retain or support the Galea’s land for the reasons given by Messrs Brown and Reid and as outlined above.
Tier one wall is built predominantly on the Galea’s land. In this regard I refer to the note on the identification plan, Appendix B to Mr Brown’s report. “NOTE: Base of Timber Retaining Wall Generally West of the Boundary. Top of the Wall Encroaches over boundary.
The proposed wall is to built wholly on the Galea’s land as appears from the plan on sheet 2 of the plans attached to Mr Reid’s report and in particular the section A.A thereof.
Were it not for the necessity for the wall to retain the land on the Galea’s property for the reasons outlined in the reports of both of the engineers, a fence of simple design and construction could be erected as a boundary fence.
Adopting the reasoning of McLelland J at page 710 of Kontikis and applying same to the facts of this matter, it can be said that “the retaining wall provides structural support for other material on and below the surface of (the Galeas land) and thus assists to maintain the surface of (the Galeas land) at its present level, but it seems to me that it does ‘separate’ the two parcels of land in what I consider to be the relevant sense of impeding egress or ingress to or from either property.
The retaining wall should, in my opinion, be treated as an integral part of the sub-surface of (the Galea’s land). The thing that in the relevant sense separates (the Galea’s land) and (the Ruffini’s land) is the vertical drop of (two or three metres) between their respective levels at or near the common boundary, rather then the retaining wall, notwithstanding that the latter happens to be where the vertical drop occurs.”
Mr Creevey for the Complainants submits that the recent decision in Iorio v Norris [2010] QCA 191, “Iorio v Norris” support the contention that the proposed wall is a fence for the purposes of the Act. I disagree. In Iorio v Norris the court did not descend into a discussion of the merits of the claim for the reasons set out in paragraphs 18, 19 and 20 of the judgment.
Secondly, Mr Creevey submits that Kontikis is not applicable in Queensland because the decision does not relate to Queensland, the applicable legislation is not Queensland legislation. I disagree with this submission. The fact that Kontikis is a decision of the New South Wales Court of Appeal does not mean that it is not persuasive authority in Queensland. Secondly, Kontikis considered New South Wales legislation which is the counterpart of corresponding legislation in Queensland. In my view while the wording of the respective legislative provisions is not identical, such provisions have the same meaning for all practical purposes.
I agree with Mr Creevey’s submission that Kontikis does not state that a retaining wall cannot be “a fence” under the then New South Wales legislation. In fact, Kontikis says that such a wall can be a “fence”. In this regard I refer to the comments of Mahoney J at page 711 where His Honour says “It is not possible to exclude the possibility of a case in which the particular wall or kind of wall was, in a real sense, chosen both because such a wall was necessary properly to mark the boundary of the land and because it was necessary for another reason, such as supporting one of the adjacent lots ….”.
Finally, Mr Creevey submits that the decision of Jackson v Randall [2000] 2 QdR 31 “Jackson v Randall” provides a clear interpretation of Kontikis as far as the Queensland Act is concerned. I agree but such interpretation does not help the Complaint’s cause.
Jackson v Randall was an application for Judicial Review of a decision of the Small Claims Tribunal in which the Applicant sought to overturn an order that he contribute to the construction of a fence and a small barrier at the base thereof to prevent slippage of soil. This was to be erected on the Respondent’s land. There is a significant factual difference between Jackson v Randall and the present case in that in the former there was an existing fence in place which the Respondent to the application considered was inadequate but which the Applicants considered was adequate.
At line 21 on page 32 of the report, Derrington J said “As to the first plaint, it appears that it is correct that the fence here is to serve two purposes, one being to constitute a dividing fence separating the adjoining lands of different owners and the other being a means of retention of the soil”.
At line 30 on page 32, His Honour then referred to the passage from Kontikis outlined above “It is not possible to exclude the possibility of a case …”. At line 41 on the same page he then went on, “In the present circumstances, the fence as designed was plainly designed with both purposes in mind as has been indicated above but that does not prevent it being regarded as a fence. It was plainly primarily a fence and it was also clear that it was plainly appropriate to erect in conjunction with that fence a suitable small barrier at its base to retain the soil from the upper land”. (The emphasis is mine)
At line 12 of page 33 His Honour said “Having regard to the circumstances of this case, it seems to be both reasonable and practical that the soil retention aspect be considered part of the fence and it was appropriate that the necessary feature be included in it. In such circumstances, it is open to the Magistrate hearing any dispute, to attribute to the respective parties an obligation to contribute to the cost in such a way that would reflect their respective obligations concerning the retention of the soil …”.
In my view Jackson v Randall is but an example of the principles stated by Mahoney J in Kontikis that in some circumstances a wall performs the function of both a boundary to the land and a support to the land. To that extent it does provide a clear interpretation of the application of Kontikis so far as the Queensland Act is concerned. However, that does not assist Mr Creevey’s clients in the present case.
Conclusion
For the reasons outlined above, in my view the proposed wall is not a dividing fence as that term is defined in the Act and therefore I have no jurisdiction to make an order to compel the Respondents to contribute to the cost thereof.
The Respondents are entitled to their costs of this action. Before pronouncing final judgment I invite the parties to negotiate the quantum of costs payable by the Complainants to the Respondents failing which I can determine that issue. I will then pronounce final judgment in the matter.
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