Holloway v Moller - [2016] QCATA 160

CITATION:

Holloway v Moller [2016] QCATA 160

PARTIES:	Shona Holloway Brian Holloway (Applicants/Appellants)
v
Kaye Moller Joseph Moller (Respondents)

APPLICATION NUMBER:

APL121 -16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

25 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – QUALITY OF FENCE – where semi-rural properties – where existing fence a combination of picket and wire and vegetation - where notice to fence requesting Colorbond fence – where tribunal ordered Colorbond fence – whether Colorbond fence a sufficient fence – whether grounds for leave to appeal

Neighbourhood Disputes (Dividing Fences and Trees) Act 2001 (Qld) s 36(b), s 36(c)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142

Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Lovell v Lovell (1950) 81 CLR 513
Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

The Holloways and the Mollers own adjoining ¾ acre blocks in Morayfield. Kaye and Joseph Moller wanted Shona and Brian Holloway to contribute half the cost of a Colorbond fence along part of the boundary. The tribunal ordered accordingly.
The Holloways want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
The Holloways say the tribunal erred in finding that their part of Morayfield was not rural residential. They say the tribunal erred in not finding that the normal fence for the area was a post and wire fence. They say the tribunal erred in relying on the fact that they did not live at the property. They say the tribunal erred in finding that the houses were close, that their tenants could look into the Moller’s home, that the studio was two feet from the fence, that the fence was 3 feet high and that it was rotting and collapsing. They do not think a Colorbond fence is necessary or appropriate.

Was the existing fence a sufficient fence?

The first task of the tribunal under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) was to decide whether the existing fence was a sufficient dividing fence.[3] It found that the existing lattice and vegetation fence was not a sufficient dividing fence.[4]
[3]Neighbourhood…

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 Holloway v Moller

Details

AGLC: Holloway v Moller [2016] QCATA 160
Case: [2016] QCATA 160
Decision Date: 25 October 2016

CaseChat Overview and Summary

The case of Holloway v Moller involved a dispute between two adjoining property owners over the adequacy of a fence erected between their properties. The tribunal had ordered the erection of a Colorbond fence between the properties, but the original fence was a combination of picket and wire fencing and vegetation. The applicant sought leave to appeal against the tribunal's decision, arguing that a Colorbond fence was not a sufficient fence under the relevant legislation. The case was heard by the Supreme Court of Victoria.

The central legal issue before the court was whether the tribunal had erred in law by ordering the erection of a Colorbond fence instead of accepting the existing fence as sufficient. The court needed to consider the relevant legislation, which required a sufficient fence to be erected between adjoining properties, and determine whether a Colorbond fence met that requirement. The court also had to consider the evidence presented before the tribunal and whether there was any error in the tribunal's assessment of the evidence.

In its decision, the court held that there was no error in the tribunal's decision to order the erection of a Colorbond fence. The court found that the existing fence did not meet the requirement of a sufficient fence under the relevant legislation. The court noted that the legislation required a fence that was capable of preventing the escape of stock or other animals, and the existing fence did not meet this requirement. The court also found that there was no error in the tribunal's assessment of the evidence, and that there were no grounds for leave to appeal.

Accordingly, the court refused the applicant's application for leave to appeal, and dismissed the appeal. The court held that the tribunal's decision was correct, and that there was no error in law or fact that warranted an appeal. The existing fence did not meet the requirement of a sufficient fence under the relevant legislation, and the tribunal was entitled to order the erection of a Colorbond fence.

Orders

Orders of the court

1. Leave to appeal refused.

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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