Hazir v Dialynn Pty Ltd

[2012] QCATA 139

CITATION: Hazir v Dialynn Pty Ltd [2012] QCATA 139

PARTIES:	Robert Hazir (Applicant/Appellant)
v
Dialynn Pty Ltd (Respondent)

APPLICATION NUMBER: APL401-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 10 August 2012

DELIVERED AT: Brisbane

ORDERS MADE:

The decision of the Tribunal dated 21 October 2012 is set aside.1.    

Minor Dispute Application MCDO0183-11 is dismissed.2.    

CATCHWORDS:

Minor Civil Dispute – where claim for damages to fence – where claim in negligence – where Tribunal lacked jurisdiction

Queensland Civil and Administrative Tribunal Act2009, ss 142(3), 146
Dividing Fences Act 1953, ss 6, 8

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. The applicant is the owner of 24 Djerral Avenue, Burleigh Waters.  The respondent is the owner of 5 Tawarri Crescent, Burleigh Heads.  In 2006 Mr Hazir demolished the existing house at 24 Djerral Avenue and built a new house. 

1. In the course of the construction certain works were done to the fence on the rear boundary with the removal of a supporting post at the corner between 24 Djerral Avenue and 5 Tawarri Crescent.  Once the supporting post was removed, it is contended by the respondent, damage was caused to the brick fence between 5 Tawarri Crescent and 22 Djerral Avenue.  There was also consequential damage to the boundary fence between 22 Djerral Avenue and 24 Djerral Avenue. 

1. On 15 February 2011 Dialynn commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming $9,915.00 for construction or repair of a fence as a result of damage to the rear boundary of 5 Tawarri Crescent.  The basis of this claim is that damage resulted from the removal of the corner post.

1. A hearing was conducted in the Tribunal and on 21 October 2011 the Tribunal made findings that Mr Hazir was responsible for the damage to the respondent’s fence.  He was ordered to pay $2,316.00 to the respondent or alternatively, $2,000 towards the construction of a colour bond fence.

1. From that decision Mr Hazir has filed an application for leave to appeal or appeal.  As this is an appeal from the minor civil disputes jurisdiction leave to appeal is necessary.  Leave to appeal will only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. It is immediately apparent that Mr Hazir raises a very good point about whether the Tribunal had jurisdiction to consider Dialynn’s claim for damages.  Accepting, as the learned Adjudicator found, that the applicant, in…