Harrison v Anderso - [2024] QCAT 152

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION: Harrison v Anderson [2024] QCAT 152
PARTIES: RODGER DENNIS HARRISON
(applicant)
v.
MIRANDA ANDERSON
(respondent)

FILE NO;                   Mackay Q 73/23
MATTER TYPE:       Other minor civil disputes matters
DELIVERED ON:     23 April 2024
HEARING DATE:     6 October 2023, 3 November 2023, 26 & 28 March 2024
DECISION OF:         Member J M Aberdeen (Acting Magistrate)
ORDERS:The Application is dismissed

CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Dividing fence dispute – whether an existing fence is a “sufficient dividing fence” – relevant considerations in determining whether the existing fence is sufficient, so as to give the Tribunal jurisdiction, and to require contribution between adjoining owners

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13
Dividing Fences Act 1861 (Qld), ss.16, 19, 20, 26, 36
Wong v Arthur [2020] QCAT 89 (Member Lumb)
Forestenko & Donnelly v Lloyd [2015] QCATA 154 (Snr Member Stilgoe OAM)

Low v Body Corporate The Preston 8268 [2014] QCATA 298 (Snr Member Stilgoe OAM)

Alwiah v Watts [2004] NSWSC 948
Brown v Doyle [2010] NSWSC 1269
Larney v Johansson [2012] NSWSC 1297
Larney v Johansson [2013] NSWCA 409
Purcell v Chadwick [2018] NSWCATAP 250
Leigh v Bruder Expedition Pty Ltd (2020) 6 QR 475 (CA)

APPEARANCES & The Applicant appeared by his agent, Ms Zoe KNIGHT, of Black’s Real Estate
REPRESENTATION: The Respondent appeared in person.

DECISION

This is an application for an order under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (NDDFT Act), that a new dividing fence be constructed on the boundary line between two residential lots. The Applicant Mr Harrison owns 3 Lochmaben Court, Beaconsfield, a suburb of Mackay City. The Respondent Ms Anderson resides with her family next door to Mr Harrison, at 5 Lochmaben Court, Beaconsfield.

The Claim:

By an Application filed on the 24 July 2023, the Applicant states, by way of particulars[1] –
“Remove and dispose of dilapidated timber fence. Replace with new timber fence. 39 metres. Full boundary shared between owners of 3 and 5. Plan attached. Current fence is falling apart and unstable, it is not able to be repaired.
…Timber fences are most common in this area. The other boundaries of 3 and 5 are also timber. Replacement to same is requested.”
[1] Exhibit 1: “Application for minor civil dispute – dividing fences, page 5.

To this Application, the Respondent has lodged a Counter-Application, filed on 3 November 2023, in the following terms[2] –
“I don’t agree with replacing 39 metres of dividing fence. 32 metres at best can still be maintained, however the other party wishes to replace the fence. I have provided several quotes in order to resolve this with the other party and each time I have been denied. I feel not all quotes have been considered and I have responded to every communication and asked questions, being honest on my circumstances. I am a one income household and a single parent. I am doing my best to make my…

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.

Continue reading Harrison v Anderso

Details

AGLC: Harrison v Anderso [2024] QCAT 152
Case: [2024] QCAT 152
Decision Date: 23 April 2024

CaseChat Overview and Summary

The case of Harrison v Anderson was heard before the Queensland Civil and Administrative Tribunal, addressing a dispute over whether an existing fence qualified as a "sufficient dividing fence" under the provisions of the Land Title Act 1994. The applicant, Harrison, sought to challenge the sufficiency of the fence and to compel the adjoining landowner, Anderson, to contribute to its replacement. The Tribunal was tasked with determining whether it had jurisdiction to hear the matter and, if so, whether Anderson was required to contribute to the cost of replacing the fence.

The central legal issue before the Tribunal was whether the existing fence met the criteria of a "sufficient dividing fence" as outlined in the relevant legislation. The Tribunal considered the statutory definition of a sufficient fence, which includes factors such as the type of land, the nature of the adjoining properties, and the purpose of the fence. Additionally, the Tribunal examined whether the existing fence adequately served its intended purpose and if any statutory requirements for a sufficient fence had been met.

In reaching its decision, the Tribunal examined the evidence provided by both parties regarding the condition and adequacy of the existing fence. The Tribunal determined that the evidence did not demonstrate that the existing fence was inadequate for its intended purpose. Furthermore, the Tribunal concluded that the evidence did not support a finding that Anderson was required to contribute to the replacement of the fence. Consequently, the Tribunal dismissed Harrison's application and found that it did not have jurisdiction to require Anderson to contribute to the replacement of the fence.

The Tribunal's final order was that the application by Harrison was dismissed, with no requirement for Anderson to contribute to the replacement of the existing fence. This decision underscores the importance of establishing that a fence is not sufficient under the relevant statutory criteria before a Tribunal can mandate a contribution from an adjoining landowner.

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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