Ishaac v Tyrrell & Tyrrell - [2025] QCATA 41

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ishaac v Tyrrell & Tyrrell [2025] QCATA 41

PARTIES:

ADELE ISHAAC

(applicant/appellant)

v

TIM TYRRELL

(first respondent)

LAVINIA TYRRELL

(second respondent)

APPLICATION NO/S:

APL225-22

ORIGINATING APPLICATION NO/S:

MCDO07/22 (Chinchilla)

MATTER TYPE:

Appeals

DELIVERED ON:

24 July 2025

HEARING DATE:

29 May 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo AM

ORDERS:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. The application for leave to appeal is granted.

2. The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – WHAT IS – GENERALLY – where the appellant’s application to recover costs of and incidental to building a fence on her property was dismissed at first instance – where the appellant appeals that decision on the basis that the initial decisionmaker did not afford her natural justice or procedural fairness – where it was dismissed at first instance because the appellant failed to comply with the provisions of the enabling Act – whether the appellant has suffered a substantial injustice as a result – whether leave should be granted – whether the appeal should be dismissed

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Allen v Queensland Building and Construction Commission [2023] QCATA 66

Campbell v Queensland Building and Construction Commission [2021] QCATA 34

Pickering v McArthur [2005] QCA 294

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

HISTORY

The appellant filed an application for minor civil dispute – dividing fences,[1] in the Chinchilla Magistrates Court on 22 April 2022 and served a copy on the respondents.
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
The application sought orders that the respondents pay half the cost of the fence constructed on the common boundary.
The application was heard by the learned Magistrate sitting as a Member of the Tribunal in Chinchilla on 4 May 2022. The application was dismissed.
The appellant has provided a chronology which sets out the history of the dispute.
The appellant purchased the property at 11 Short Street, Wandoan in Queensland in August 2020.
In about September 2020, the applicant obtained details of the residential addresses of her neighbours. She wrote to all three neighbours advising them of her intention to construct a boundary line fence between each of the properties.
On 20 November 2020, the applicant received a reply from the respondents who were the owners of 13 Short Street, Wandoan, advising that they were not willing to pay.
The response was contained in an email dated 20 November 2020 and said:
we received your letter regarding the common boundary between yourself and our house at 13 Short Street. We understand that you would like to replace the fence with the timber paling fence. Unfortunately, we are just in a very tight financial position at the moment that really doesn't lend itself to any urgent expenses. Sadly seven years of drought has…

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 Ishaac v Tyrrell & Tyrrell

Details

AGLC: Ishaac v Tyrrell & Tyrrell [2025] QCATA 41
Case: [2025] QCATA 41
Decision Date: 24 July 2025

CaseChat Overview and Summary

The appeal in Ishaac v Tyrrell & Tyrrell was brought before the court by the appellant, who sought to challenge the dismissal of her application to recover the costs of building a fence on her property. The respondents, Tyrrell & Tyrrell, opposed the appeal, arguing that the initial decisionmaker had followed due process and that the appellant's failure to comply with the provisions of the enabling Act justified the dismissal of her application. The court was required to determine whether the appellant had a right to appeal the decision and whether the initial decisionmaker had afforded the appellant procedural fairness.

The court examined the legal principles surrounding appeals and the right to procedural fairness. It found that the appellant had the right to appeal the decision, but that the appeal would only be granted if the appellant had suffered a substantial injustice as a result of the initial decisionmaker's failure to afford procedural fairness. The court considered whether the appellant had indeed suffered such injustice and whether the appeal should be dismissed. In assessing the appellant's arguments, the court examined the provisions of the enabling Act and the extent to which the appellant had complied with them.

After considering the arguments and the evidence presented, the court concluded that the appellant had not suffered a substantial injustice as a result of the initial decisionmaker's failure to afford procedural fairness. The court found that the appellant's failure to comply with the provisions of the enabling Act was a significant factor in the dismissal of her application, and that the initial decisionmaker had followed due process in reaching its decision. Accordingly, the court granted the appellant's application for leave to appeal but dismissed the appeal itself.

The orders of the court were that the application for leave to appeal was granted, but that the appeal was dismissed. The court found that the appellant had not suffered a substantial injustice as a result of the initial decisionmaker's failure to afford procedural fairness and that the appeal should therefore be dismissed. The court's decision highlights the importance of complying with the provisions of the enabling Act and following due process in administrative decision-making.

Orders

Orders of the court

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1. The application for leave to appeal is granted.

2. The appeal 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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