Jones v Budd - [2015] QCATA 117

CITATION:		Jones v Budd [2015] QCATA 117
PARTIES:	Gregory Kenneth William Jones (Applicant/Appellant)
v
Scott Budd Trish Budd (Respondents)

APPLICATION NUMBER:

APL157-15

MATTER TYPE:

Appeals

HEARING DATE:

5 August 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

10 August 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – DIVIDING FENCES – where application for dividing fence where request for orders about work on retaining wall – where tribunal found retaining wall performing adequately – where tribunal found fence sufficient – whether tribunal has jurisdiction to hear claim about a retaining wall - whether grounds for leave to appeal

Neighbourhood Disputes Resolution (Dividing Fences and Trees) Act 2011 (Qld) ss 11, 13, 16, 20, 35

Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION:

Applicant:	G K W Jones in person
Respondents:	S Budd in person and as representative for T Budd

REASONS FOR DECISION

Gregory Jones bought his home in 2000 from the builder. There was a retaining wall and fence between his property and his neighbours, Scott and Trish Budd.
From a time shortly after his purchase until late October 2014, Mr Jones was away from Brisbane. His house was tenanted. When he returned, and took possession of the house again, he noticed: the dividing fence was in a poor state; water was seeping through the retaining wall; the retaining wall was wet and showed early signs of being pushed out; and there was no evidence of any effective drainage system behind the retaining wall.
Mr Jones contacted the Budds to discuss the situation. In a letter dated 28 October 2014, he suggested the removal of the fence and retaining wall, installation of drains on both sides of the fence, installation of a waterproof filter; installation of a concrete and block wall; and a Colorbond fence on top. He suggested the parties share the cost of that work equally. The Budds did not agree.
Mr Jones sent the Budds a notice to contribute for fencing work. The fencing work proposed was similar to that in Mr Jones’ letter of 28 October 2014. Again, the Budds did not agree.
Mr Jones filed an application in the tribunal. The orders he sought were somewhat unusual:
a)   That the Budds provide to the tribunal evidence that the required Council approval was obtained for the dividing wall and the fence;
b)   That the Budds provide to the tribunal evidence that the retaining wall was built within the boundaries of their property;
c)   That the Budds provide to the tribunal evidence that adequate drains have been installed to cause water to drain from their land to the Council’s storm water system and thereby avoid overflow to Mr Jones’ property;
d)   If the matters above are concluded in Mr Jones’ favour, an order to fence;
e)   If the matters above are not concluded in Mr Jones’ favour, orders compelling the Budds to fix the retaining wall; remove the…

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 Jones v Budd

Details

AGLC: Jones v Budd [2015] QCATA 117
Case: [2015] QCATA 117
Decision Date: 10 August 2015

CaseChat Overview and Summary

In the case of Jones v Budd, the appellant sought to appeal a decision of the Civil and Administrative Tribunal of New South Wales concerning a dispute over the construction of a dividing fence. The tribunal had found that the existing fence was sufficient and that the retaining wall, which the respondent had constructed, was performing adequately. The appellant argued that the tribunal had no jurisdiction to hear the claim about the retaining wall and that there were grounds for leave to appeal. The respondent opposed the appeal, arguing that the tribunal had correctly exercised its jurisdiction and that the appeal had no reasonable prospect of success.

The legal issues before the court were whether the tribunal had the jurisdiction to hear the claim about the retaining wall and whether there were grounds for leave to appeal. The court noted that the tribunal had jurisdiction to hear disputes about dividing fences under the relevant legislation and that the claim about the retaining wall was ancillary to the main dispute about the fence. The court also found that the appellant had not demonstrated that the appeal had a reasonable prospect of success, as the tribunal's decision was supported by evidence and was not erroneous. Accordingly, the court refused leave to appeal.

The court's reasoning was based on the principles of statutory interpretation and judicial review. The court held that the tribunal had correctly exercised its jurisdiction and that the claim about the retaining wall was incidental to the main dispute about the fence. The court also found that the appellant had not shown that the tribunal's decision was Wednesbury unreasonable or that there were other grounds for leave to appeal. The court noted that the tribunal had considered all relevant evidence and had made a decision that was supported by the evidence.

In conclusion, the court refused leave to appeal in Jones v Budd. The tribunal had correctly exercised its jurisdiction and had made a decision that was supported by evidence. The appellant had not demonstrated that the appeal had a reasonable prospect of success or that there were other grounds for leave to appeal. The decision of the tribunal stood, and the appellant was not granted leave to appeal.

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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