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 the removal or disturbance of the corner post, caused structural damage to the fence between 22 Djerral Avenue and 5 Tawarri Crescent, what is the basis of the Tribunal’s jurisdiction to consider the claim?  It is apparent that Dialynn’s does have a cause of action in negligence, although by reference to the application the case seemed to have proceeded as though the relief sought was under the Dividing Fences Act 1953. Having said that there is no reference to the Act in the learned Adjudicator’s reasons but it is raised in the applicant submissions in the appeal.  In any event the matter proceeded as a minor civil dispute.

1. Section 12 of the QCAT Act confers jurisdiction on the Tribunal for minor civil disputes. It includes claims for a debt or liquidated demand, a claim arising out of a contract between a consumer and a trader, a claim arising out of a contract between two or more traders and, a claim that is subject of a dispute under the Dividing Fences Act1953.

1. This claim is not one for a debt or liquidated demand. The minor civil dispute application claimed a monetary sum, $8,503.00, to replace the damage fence as a result of the conduct, negligent or otherwise, of Mr Hazir in removing the corner post. It is not a claim between two traders as there was no evidence that Mr Hazir or Dialynn are traders within the definition of the QCAT Act. It is also not a claim under the Dividing Fences Act 1953 because it does not relate to a common boundary[1], and no notice to fence was issued as is required under that Act.  Accepting the findings of fact of the learned Adjudicator, Dialynn’s claim is one for negligence under the “neighbour principle”.

   [1]        Dividing Fences Act 1953, ss 6(1) and 8.

1. Because the Tribunal did not have jurisdiction to hear and determine Dialynn’s application, the application should have been dismissed or alternatively transferred to a court.  It seems however, having regard to the reasons of the learned Adjudicator, neither of the parties raised the jurisdictional issue.  It also seems they were content to proceed to a determination of the factual matters then in dispute that is, who was responsible for the damage to the fence. 

1. In the absence of a party raising jurisdictional issue and, because the dispute involved a fence, it is understandable that the learned Adjudicator proceeded to decide the factual dispute between the parties without having regard to whether the Tribunal had jurisdiction to hear the dispute.  It seems that the first time the jurisdictional point was raised is in the appeal documents, this is unfortunate.  Even though the parties may have conceded the Tribunal had jurisdiction in the original hearing that does not confer jurisdiction on the Tribunal.

1. I am satisfied that there has been an error of law and as a consequence leave to appeal should be granted and the appeal allowed  I therefore propose to set aside the decision and substitute my own decision which is that the application be dismissed.[2]    

   [2]        Queensland Civil and Administrative Tribunal Act 2009, s 146.