Jolliffe v Boehme
[2011] QCATA 4
•24 January 2011
| CITATION: | Jolliffe v Boehme [2011] QCATA 4 |
| PARTIES: | Gary Joseph Jolliffe (Applicant/Appellant) |
| v | |
| Mr Brian Boehme & Mary-Anne Boehme (Respondent) |
APPLICATION NUMBER: APL296-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member |
DELIVERED ON: 24 January 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal is refused
| CATCHWORDS : | Dividing Fence; where Notice to Fence given but no application made pursuant to section 9 of the Dividing Fences Act; whether applicant entitled to payment of half of cost of the fence; whether onus on respondent to bring application. Queensland Civil and Administrative Tribunal Act 2009 section 142(3) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Jolliffe and Mr and Mrs Boehme are neighbours. They reside at 25 Silverbark Drive, Varsity Lakes and 23 Silverbark Drive respectively. They fell into dispute concerning the construction of a fence on the joint boundary line and as a consequence, Mr Jolliffe brought an application from minor civil dispute – minor debt in QCAT on 15 December 2009. The application sought an order that the Boehmes pay to Mr Jolliffe half the cost of a fence constructed by him in the sum of $1,200.00.
The matter came on for hearing before a QCAT Adjudicator on 14 September 2010 and the application was dismissed.
Mr Jolliffe has filed an application for leave to appeal and appeal from that decision. Leave is necessary.[1]
[1] QCAT Act section 142(3)
Background
The evidence before the learned Adjudicator indicates that there was correspondence passing from Mr Jolliffe to the Boehmes on various dates between 7 September 2009 and 16 September 2009. The effect of that correspondence is that Mr Jolliffe sought the Boehmes agreement to the type and cost of the fence to be constructed on the common boundary. No agreement was reached between the parties as to the type of fence to be constructed or its cost.
As he was entitled to do, Mr Jolliffe gave the Boehme’s a Notice to Fence pursuant to section 8 of the Dividing Fences Act (1953). The Notice to Fence complied with the requirements of section 8(2) in that it specified the boundary line to be fenced, the type of fence to be constructed and the cost, which was $2,400.00. I would point out that Mr Jolliffe had gone to some trouble to obtain quotes and of the four quotes obtained, he proposed that the cheapest quote be adopted.
As Mr Jolliffe did not receive any response to the Notice to Fence he again wrote to the respondents on 22 September 2009 advising that unless the respondents notified him in writing of their agreement, he would proceed to the Magistrates Court “for a decision in this matter”.
On 7 October 2009 Mr Jolliffe again wrote to the Boehmes stating that he had served a Notice to Fence on 17 September 2009 pursuant to the Act, and as the Boehme’s had refused to pay, he intended to commence legal proceedings. At this stage there had simply been no response by the Boehmes.
The only written response to any of Mr Jolliffe’s correspondence is a letter from Mr Boehme of 17 October 2009 where he takes issue with Mr Jolliffe’s demand for payment and his application of the provisions of the Dividing Fences Act.
The transcript of evidence of the hearing before the learned Adjudicator indicates that the fence was then constructed by Mr Jolliffe, in the absence of any agreement or court order, and he then commenced proceedings to recover half of the cost.
The QCAT Hearing
During the course of the hearing, the learned Adjudicator made it clear to the parties that as Mr Jolliffe had not complied with the provisions of the Dividing Fences Act, section 9, and in the absence of any agreement between the applicant and the respondents, he could not make an order directing the respondent to pay Mr Jolliffe the sum of $1,200.00. The application was dismissed.
The Dividing Fences Act
The purpose of the Dividing Fences Act is to impose a liability on adjoining owners of land to contribute to the construction of a dividing fence in equal proportions. The statutory liability is to overcome the situation where neighbours simply cannot agree as to the type of fence to be constructed, or the cost. The Act therefore provides that an owner who wants to compel an adjoining owner to contribute to the construction of a fence, must first serve a Notice to Fence.
Here the applicant complied with the obligation under section 8 by serving the Notice to Fence
If no agreement can then be reached, section 9 of the Act provides that either the person serving the Notice to Fence or the person served, can apply to a Magistrates Court or QCAT[2] for an order to determine, the kind of fence to be constructed and the proportion to which each neighbour must contribute to the cost of the fence. Orders can also be made as to the time within which the fence should be constructed and other consequential orders such as the line of such fence and compensation for loss of use of land.
QCAT has jurisdiction to hear an application as a Minor Civil Dispute : Definition of Minor Civil Dispute s. 1(f)
In making an order as to the type of fence to be constructed, the Magistrates Court, or QCAT shall take into consideration the kind of fence usual in the locality and also the purposes for which the adjoining lands are used[3].
[3] Section 9(4)
Here, no such application was made and instead, the applicant sought to recover from the respondents $1,200.00 by way of a debt due and owing. No application was made pursuant to section 9 by either party.
Grounds of appeal
Mr Jolliffe has filed an extensive outline of argument setting out the grounds of appeal. In respect of the application of section 9, it is submitted by him that:-
“The sub-section does not require the applicant to bring such an application and it is admitted that it is the intent of the sub-section that a person who has or the person who had problems or issues with the content of the Notice to Fence would be the applicant for the Notice to Fence. It is submitted that in this case it was only the respondents who had such problems or issues, that form was available to the respondents to have their concerns about the construction materials of the Dividing Fences heard and determined by an order to fence made under the subsection. The respondents chose not to take that avenue to protect their interests and did nothing both during the month allowed for them to apply to QCAT under the subsection and over subsequent months up to the time when the applicant could wait no longer and commenced construction”.
That interpretation of section 9 of the Act is not open on its proper construction.
The Act certainly does make provision for the Boehmes to make an application to the Magistrates Court or QCAT if they chose, but there is no obligation to respond to the Notice to Fence by bringing such an application. They are quite entitled to sit by and do nothing. Section 9 only imposes an obligation on a neighbour to contribute to the cost of the fence if the Magistrates Court or QCAT makes an order to that effect.
Contrary to the applicant’s submission, if the applicant does want to construct the fence, and wants contribution from the respondents then it is incumbent on him to make application for an order from the Magistrates Court or QCAT as to the type of fence to be constructed and a contribution towards the cost. In the absence of such an order, or an agreement between himself and the Boehme’s as to the type of fence constructed and the cost, he has no legal right of recovery.
This is the point that the learned Adjudicator made during the course of the hearing and in the reasons for the decision. I agree entirely with those reasons.
Other grounds of appeal
Mr Jolliffe contends that the Adjudicator erred in law in that he failed to exercise his discretion to make an order that was fair and just in the circumstances of the case. No such discretion was available to the learned Adjudicator in this matter. The applicant’s cause of action could only be pursuant to an agreement reached between himself and the Boehme’s, or pursuant to an application made under section 9 of the Dividing Fences Act. If such an application had been made, and there were issues to be determined as to the type of fence to be constructed, there may well have been an exercise in discretion in consideration of those matters. But that is not the case here. Therefore this ground of appeal must fail.
It is also contended that the learned Adjudicator took into account irrelevant considerations. A perusal of the transcript indicates that from the very beginning of the hearing, the learned Adjudicator expressed concerns about the failure on the part of the applicant to pursue his rights in accordance with section 9 of the Dividing Fences Act. The adjudicator’s decision was firmly based on the Dividing Fences Act and no irrelevant considerations were involved in that decision.
Conclusion
The decision was not unreasonable in the circumstances in that there was a clear failure on the part of the applicant to pursue the claim pursuant to section 9 of the Dividing Fences Act.
My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[4]
[4] Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[5] Is there a reasonable prospect that the applicant will obtain substantive relief?[6] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[7] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[8]
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6] Cachia v Grech [2009] NSWCA 232 at [13].
[7] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[8] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
In conclusion, no error of law or of fact is discernable from the reasons given by the learned Adjudicator and as no error has been demonstrated and none is apparent, leave to appeal is refused.
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