Makowiecki v Radulovic - [2022] QCAT 361

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Makowiecki v Radulovic [2022] QCAT 361

PARTIES:

PAUL MAKOWIECKI

(applicant)

v

MAXINE RADULOVIC

(respondent)

APPLICATION NO/S:

MCDO00513/21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

17 October 2022

HEARING DATE:

5 July 2022

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Gaffney

ORDERS:

The Application is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – DIVIDING FENCES – urgent fencing work – attaching things to a dividing fence – where an owner of property replaced a dividing fence without first giving a notice to the adjoining owner under s 31 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA) – where the owner issued a notice to contribute for urgent fencing work purportedly under s 32 of the NDA – whether the fencing work was ‘urgent fencing work’ under s 28 of the NDA – whether the fence collapsed – where the adjoining owner attached things to the fence – whether the owner is entitled to apply for an order under s 27(2) for the removal of the attachments and restoration of the dividing fence

Acts Interpretation Act 1954 (Qld), s 14A(1)

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3, s 27, s 28, s 32, s 35

APPEARANCES & REPRESENTATION:

Applicants:

Julie-Anne Michajlow and Paul Makowiecki

Respondent:

Self-represented by Maxine Radulovic

REASONS FOR DECISION

Introduction

Mr Makowiecki seeks three kinds of orders against Ms Radulovic under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA). The claim is a ‘minor civil dispute’ for the purpose of s 11 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
The contribution claim
First, Mr Makowiecki seeks an order that Ms Radulovic reimburse him $6,000, being half of the cost of works which he arranged to replace a dividing fence between his property and Ms Radulovic’s property. The works are described in his notice to contribute dated 16 March 2021 as follows:
Besser Block Wall, reinforced with concrete and steel, with steel posts and timber fence panels, 15 metres of drainage, removal of existing damaged fence, hire of earthmoving machinery.
In effect, Mr Makowiecki claims that that work was ‘urgent fencing work’ which entitled him to carry out the works first and give Ms Radulovic a notice to contribute afterwards under s 32 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA). Ordinarily, Mr Makowiecki would have been required to give a notice to contribute to Ms Radulovic before carrying out fencing work under s 31 of the NDA. I will call this the contribution claim.
The future conduct claim
Mr Makowiecki also seeks the following orders:
(a)that Ms Radulovic not remove or interfere with the drainage system in particular the rocks; and
(b)that Ms Radulovic apply protective coating to the fence on her side.
I will call this the future conduct claim.
The attachment claim
Finally, by an amendment to the Application, Mr Makowiecki seeks orders under s 27(2) of the NDA that, primarily, require Ms Radulovic to remove attachments to the dividing fence constructed by Ms Radulovic. I will call this the attachment claim.
Conclusions
I have concluded that Mr Makowiecki is not entitled to the orders which he seeks in relation to the contribution claim and the attachment claim, because, on my assessment of the evidence, he has not satisfied the pre-requisites of the NDA on the balance of probabilities, given:
(a)in relation to the contribution claim, he failed to establish that the work was ‘urgent fencing work’; and
(b)in relation to the attachment claim, because he failed to satisfy the requirements of s 27 of the NDA.
In relation to the future conduct claim, I have concluded that Mr Makowiecki is not entitled to the orders he seeks because the Tribunal does not have the power to make the orders sought under the NDA.
My reasoning is set out below.
The contribution claim
In order to seek an order for contribution under s 35 of the NDA (see s 32(6)) Mr Makowiecki has to satisfy the requirements of ss 28 and 32 of the NDA.
Section 28 of the NDA provides:
28 Urgent fencing work
(1)This section applies if all or part of a dividing fence is damaged or destroyed and, in the circumstances, urgent fencing work is required.
(2)If it is impracticable to give a notice under section 31, an owner may, without giving the notice, carry out the fencing work required to restore the dividing fence to a reasonable standard, having regard to its state before the damage or destruction.
Note—
Contribution from an adjoining owner to the cost of the urgent fencing work may be obtained after giving a notice to the adjoining owner under section 32.
(3)The cause of the damage or destruction does not affect the operation of this section.
(Emphasis added)
Section 32 of the NDA provides:
32 Notice to contribute for urgent fencing work
(1)This section applies if an owner carried out fencing work under section 28.
(2)The owner may require the adjoining owner to contribute, under this chapter, to any reasonable cost incurred for the fencing work by giving a notice to the adjoining owner.
(3)The notice must be in the approved form and state the following—
(a)      a description of the land on which the fencing work was carried out;
(b)      the reason urgent fencing work was required;
(c)      the type of fencing work carried out;
(d)      any cost incurred for the fencing work and a receipt for the cost.
(4)The owner giving the notice may propose that the contribution to carrying out the fencing work is to be borne other than in equal proportions.
(5)For subsection (4), the notice must state the proposed proportions.
(6)If, within 1 month after the notice is given, the adjoining owners have not agreed about their contributions to carrying out the fencing work, either adjoining owner may, within 2 months after the notice is given, apply to QCAT for an order under section 35.
I am satisfied that the notice, which was given to Ms Radulovic on 17 March 2021, met the formal requirements and that the express timeframes in s 32 were satisfied.
The question is whether the Mr Makowiecki carried out fencing work ‘under’, ie in accordance with, s 28 (for urgent fencing work) so as to be entitled to issue the notice in the first place. For the requirements of s 28 to be met, Mr Makowiecki has to establish, amongst other things:
(a)that all or part of the fence was damaged or destroyed; and
(b)that in the circumstances ‘urgent fencing work’ was required.
How should s 28 be interpreted?
‘Urgent fencing work’ is not defined in the NDA. ‘Urgent’ is defined in the Macquarie Dictionary as ‘pressing, compelling or requiring immediate action; imperative’. The Oxford Australian Dictionary defines ‘urgent’ as ‘requiring immediate action or attention’.
No examples are given in the Act as to the kinds of circumstances justifying the carrying out of urgent fencing work without a notice to contribute under s 31, although s 28(3) indicates that urgent fencing work may be required regardless of the cause of the damage or destruction.
I have had regard the Explanatory Note to the Neighbourhood Disputes Resolution Bill 2010[1] to confirm the interpretation conveyed by the ordinary meaning of the provision. It states, in relation to s 28:
There will be occasions in which it is necessary to undertake fencing work urgently, for example, when the dividing fence is damaged during a flood or fire or other catastrophic event.
[1]By s14B(1)(c) of the Acts Interpretation Act 1954 (Qld).
The consequence of issuing an ‘urgent’ notice to contribute under s 28 is that it may result in real prejudice to the adjoining owner. An adjoining owner may be required by order of the Tribunal to contribute to the cost of a fence, and potentially other ancillary work, which has been constructed without the adjoining owner’s knowledge or consent. The adjoining owner may have had no say in how the fence was constructed, for what cost, who constructed it, what materials were used, on whose side the posts and rails are located or its aesthetic qualities (or the lack of them).
Although s 28(3) indicates that the application of s 28 should not be confined to force majeure events, I do consider that the owner seeking contribution must demonstrate an exceptional case to justify the intervention of the Tribunal. I consider that to be the interpretation which best achieves the purpose of the NDA,[2] which is to avoid disputes, and facilitate their resolution.[3]
[2]Refer s14A(1) of the Acts Interpretation Act 1954 (Qld).
[3]Refer in particular to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 3 (‘Objects of Act’).
What happened to the fence?
The notice says that the fence collapsed:
When Maxine removed the straps that were supporting the fence…the fence began to collapse in several places, causing damage to my property. It was dangerous and put my property, my animals and myself at further risk of harm if not fixed urgently. (Emphasis added)
In his statement filed with the Application, Mr Makowiecki states:
On or about the 16^th March, I had a contractor attend my property to attend to a problem with my side access gate, it became very difficult to open and close…The gate because too difficult for me to open and close it by myself, I needed to get it fixed as it possed (sic) a risk of injury to myself.
During the process of attending to the problem with the gate, the dividing fence became completely unstable and began to fall down. There was nothing to support the fence, the posts were no longer holding ground. My contractor established that the fence needed to be replaced immediately as it was dangerous. (Emphasis added)
In the hearing, Mr Makowiecki explained that the urgency lay in the risk of Ms Radulovic’s carport falling on his house.
Mr Makowiecki also filed material asserted to be from the fencing contractor, Lachlan McLeod, of Ipswich Fencing, to support Mr Makowiecki’s version as to what happened to the fence.
An itemised invoice dated 8 February 2021 was filed. In the ‘Details’ section it states:
Attended property to fix side gate
Remove side gate
ADJOINING DIVIDING FENCE FELL DURING THE ABOVE WORK
An unsigned letter from Mr McLeod was also filed, dated 11 February 2021,[4] although it appeared on Ipswich Fencing letterhead. It states, amongst other things:
I attended Paul Makowiecki’s property… with the intension (sic) of removing and refitting a side gate at the right side of the property. The gate was attached from dividing fence to side of house. Paul had advised that he was no longer able to open the gate.
When I (sic) attended the property and began works to remove the side gate the dividing fence became unstable and collapsed, I advised Paul that it would be dangerous to leave it as it was and it needed to be fixed as a matter of urgency. It became immediately obvious that the underlying ground needed immediate attention. (Emphasis added)
[4]Assumedly a reference to 11 February 2022.
Mr Makowiecki submitted black and white photographs of the fence to show holding straps on two palings, and a retaining wall and garden bed intact. These photos are not time stamped. He also submitted numerous photographs showing the progress of the works.
My assessment of the evidence
I turn now to assess the truth or falsity, on the balance of probabilities, of Mr Makowiecki’s assertion that the fence collapsed, either when the side gate was removed by Mr McLeod, or when Ms Radulovic removed the straps supporting the fence.
There are a number of concerns which I have in relation to the evidence presented by Mr Makowiecki.
First, there is an obvious conflict as to whether the fence fell down when the straps were removed, as stated in the notice, or when the side gate was in the process of being removed, as stated in Mr Makowiecki’s statement. However, that conflict may be reconciled by construing the reference to ‘when’ in the notice as meaning ‘some time after’. If that were the only inconsistency, it would not affect my overall impression of the evidence Mr Makowiecki submitted. However, there are other inconsistencies.
The date alleged in Mr Makowiecki’s statement as the day the fence began to fall down was 16 March 2021, which is also the date of the notice and the initial receipt via email from Mr McLeod for the payment of $12,000 by Mr Makowiecki. Yet the date given for the carrying out of the work as specified in the notice and in the Form 53 was 8 February. The other date given by Mr Makowiecki in the hearing for the work being carried out was 11 February.
Ms Michajlow, who was granted leave to represent Mr Makowiecki, appeared at the hearing. She said she lives with Mr Makowiecki and was involved in matters surrounding the fence at the relevant times. She stated later in the hearing that Mr McLeod’s photographs, which were submitted with the Application, are dated 6 February, and suggested that this was the date the work was carried out. The photographs provided to the Tribunal are not date stamped.
The dates in February and March are over a month apart. Mr Makowiecki explained the discrepancy as either his mistake or Mr McLeod’s mistake. Given the detailed and considered nature of the signed written statement included in the Application, in circumstances where Mr Makowiecki was in a position to refer to the notice in the Application, I find this difficult to accept. I consider it more likely that the date was calculated to align with the receipt and the notice.
There are further inconsistencies in Mr Makowiecki’s statement as to the time at which the side gate would no longer open. At one point it states:
As my property is on the downhill side, the damaged fence and collapsed ground was causing problems to my side, it caused my garden bed to collapse and sleepers to fall down, which I believe was very dangerous. My side access gate would no longer open. I had discussions with Maxine about this, and I now believe this was caused by the removal of the straps. Maxine agreed that the fence needs fixing. Nothing eventuated. (Emphasis added)
Further in the statement, it is stated:
Sometime in the last 3-4 months, unbeknown to myself at the time, Maxine also removed the straps that were holding the fence in place from falling over. I only realised this when the fence started to lean right over, and my gate wouldn’t open and then the garden bed collapsed… (Emphasis added)
And then finally it is stated:
On or about the 16^th March 2021, I had a contractor attend my property to attend to a problem with my side access gate, it became very difficult to open and close. (Emphasis added)
The first two statements indicate not only that the side gate would not open at all but that this had happened some time ago, because it was discussed with Ms Radulovic but nothing eventuated. The third statement indicates that that was not the case and the side gate was merely very difficult to open and that occurred on or about 16 March 2021.
In the itemised invoice from Ipswich Fencing dated 8 February there is a cost item for preparing a quote yet no quote was filed. Further, it would be unusual to include a charge for five days labour in advance of the work being undertaken, whether that was on 6, 8 or 11 February. I consider the invoice date is inaccurate.
There were other inconsistencies in Mr Makowiecki’s evidence in relation to the attachment claim, which I refer to below in my discussion of that claim.
I find it most compelling that despite the numerous photographs filed showing the progress of the works, which were allegedly taken by Mr McLeod, none actually show the collapsed fence. Ms Michajlow accepted there was no such photograph but suggested Mr McLeod did not take photographs until he was actually doing the work. That seems unusual to me. Further, there seemed to be nothing to prevent Mr Makowiecki nor Ms Michajlow from taking their own photograph of such an event, which, in the context, including Ms Radulovic’s absence, was of vital importance. Other photographs of the condition of the fence prior to the alleged collapse had been taken, which show the holding straps, and were submitted by Ms Michajlow on 20 July 2021. To take these pictures, but not a picture of the collapsed fence, strongly suggests to me, in light of the other evidence, that there was nothing of importance to photograph.
Mr Makowiecki did not submit a signed document from Mr McLeod and Mr McLeod was not called as a witness at the hearing. I attach negligible weight to any material which is alleged to have been issued by him.
Finally, despite the three and a half years in which the matters of the fence was discussed with Ms Radulovic (according to Mr Makowiecki’s statement), the fence supposedly fell down whilst she was interstate on holiday. Ms Radulovic’s evidence was that before she went away she and Mr Makowiecki discussed the fence and he said words to the effect that she should not stress about the fence and they would discuss it on her return. This was denied by Ms Michajlow, who was not in a position in my view to give evidence on this point, and I prefer Ms Radulovic’s evidence.
It is a remarkable and, for Mr Makowiecki, a very convenient coincidence that the fence fell down before Ms Radulovic returned, so that she was not in a position to see what happened.
In the circumstances, I find the evidence of Mr Makowiecki as to the fence falling down on or about 8 February to be unreliable, and consider that it was more likely than not that the fence did not collapse on or about 8 February, or on 16 March 2021, or on any other date. I find that work to remove and replace the fence was not due to the fence collapsing, that the situation was not therefore dangerous as was asserted, and that the work was not urgent fencing work for these reasons.
I do however accept that the fence was damaged because I accept that a black and white photograph submitted by Ms Radulovic represented the condition of the fence as at 20 January 2021. The palings are upright but some are out of alignment. Ms Radulovic in her submissions filed 21 February 2022 states that there were palings missing on Mr Makowiecki’s side of the fence, but (it may be inferred from that submission) not enough for Mr Makowiecki’s dog to get through the fence. The other photograph said to be taken on 20 January 2021 shows the length of the palings. It is also black and white. It shows the palings to be upright but is not clear enough to draw a conclusion that the palings were damaged along their length.
Was urgent fencing work required in the circumstances?
The misaligned or missing palings were not identified in the notice as the reason for the urgent fencing work. The notice is defective to that extent, and has the result that Ms Radulovic did not have the opportunity to properly consider whether to agree to the proposal for contribution contained in the notice. A claim on this basis should be refused for that reason.
If I am wrong in that conclusion, I turn to consider whether the unaligned and/or missing palings required urgent fencing work so as to entitle Mr Makowiecki to seek contribution towards the cost of the works.
Judging by the photographs of 20 January 2021, I am not satisfied that the misaligned palings required immediate attention, for example, because this created a dangerous situation. There was no evidence of an imminent risk caused by missing palings. I attach little weight to Mr Makowiecki’s version of events, and to that which was supposedly the evidence of Mr McLeod. There was no evidence from a credible, independent witness which established that the situation was dangerous or otherwise required immediate attention.
The relevance of Ms Radulovic’s alleged consent to the works

Mr Makowiecki stated at the hearing that Ms Radulovic had verbally agreed to the works and that Ms Radulovic’s adult son and granddaughter did not raise any objection to the works. Mr Makowiecki and Ms Michajlow also asserted that at the time the works were occurring Ms Radulovic was talking to her granddaughter by videoconference (presumably at the site) and did not raise any objection. Ms Michajlow said at the hearing that the first time Ms Radulovic raised an objection was when she was asked to contribute to the work.
Ms Radulovic states in her submissions filed on 11 March 2022 that initially she and Mr Makowiecki had discussed the potential of replacing the fence only, in which she was prepared to pay half. She confirmed this at the hearing.
By s 10 of the NDA, the NDA’s provisions do not affect an agreement made between the adjoining owners.
However, Ms Radulovic disputed that she agreed to the whole of the work which was done (including drainage and a retaining wall), and only agreed to pay for half of a ‘like for like’ fence. She said that she had obtained a quote for $1,765.50. I find that more plausible than Ms Radulovic agreeing to works costing $12,000 in total, when, as Mr Makowiecki pointed out in his statement, which I consider in this instance to be credible, because it is plausible, Ms Radulovic’s issue was that she could not afford to fix the fence.
I prefer Ms Radulovic’s evidence which establishes that there was no relevant agreement. Further, a failure to object to the works, whether it be by Ms Radulovic or her relatives (and there is insufficient evidence to conclude that the actions of those persons bind Ms Radulovic), is not an agreement or representation that Ms Radulovic would contribute to half of the significant works which were ultimately carried out.
The future conduct claim
As stated above, Mr Makowiecki also seeks the following orders:
(a)that Ms Radulovic not remove or interfere with the drainage system in particular the rocks; and
(b)that Ms Radulovic apply protective coating to the fence on her side.
The Tribunal has no power to make the first order sought. An order restraining an adjoining owner from demolishing a dividing fence is available under s 38 of the NDA but Mr Makowiecki has not satisfied the relevant conditions: a drainage system is not a ‘fence’ as defined in s 11 of the NDA nor a ‘dividing fence’ as defined in s 12 of the NDA and there is no evidence of any intention to demolish the fence. There is no other source of power available under the NDA to make the order sought. Further, under the QCAT Act an injunction under s 59(1) may only be granted by a legally qualified member under s 59(4).
As to the second order sought, again the Tribunal has no power to make the Order. While the application of a protective coating to the fence might qualify as ‘fencing work’ under s 16 of the NDA as it concerns the maintenance of a dividing fence, the only way in which the Tribunal could make an order for the carrying out of this work is via an order under s 35 of the NDA. In this case, that depends upon a valid, prospective, notice to contribute for fencing work under s 31 of the NDA. None was given.
The attachment claim
As to the attachment claim, Mr Makowiecki seeks the following orders (in effect):
(a)that Ms Radulovic remove all the materials she has added to the constructed footing used for the dividing fence, being 3 besser brick x 15m in length of besser brick wall added on top of the dividing fence;
(b)that Ms Radulovic return the fence back to the way it was;
(c)that Ms Radulovic bear all costs associated with the removal of the ‘add ons’; and
(d)that Ms Radulovic bears any costs for damage caused to the fence and footings in the removal of her add on material.
In the section ‘Reasons for Orders’ Mr Makowiecki states:
The respondent has built two add on structure (sic) on top of the dividing wall footings.
The add on consists of an extra 3 Besser bricks in height x 15 metres in length. This new wall has been directly concreted on top of the existing footing. The respondent directed the applicant to cease the remaining finishes to dividing fence (sic), until the Qcat application was finalised and then proceeded to commence and complete works that added onto the existing new dividing fence.
The respondent has then undertaken more works by way of another add on Besser brick structure to the first add on, the constructed a screen fence on top of the Besser brick, adding strain to the footing (sic) that were constructed to support the fence. They have placed pieces of wood from the screening structure to dividing fence to support the screen.
I do not have an issue with the screen itself, I only mention the screen as it has been built using the Besser brick footings that the respondent is disputing she should have to contribute to.
Section 27 of the NDA provides as follows:
(1) An owner, or a person who has entered the owner’s land with the owner’s express consent, must not, without the consent of the adjoining owner, attach a thing to a dividing fence that unreasonably and materially alters or damages the dividing fence.
Examples of an attachment—
carport, shade sails, lattice work, canvas, signs
(2) If an owner does not comply with subsection (1), the adjoining owner may apply to QCAT for an order requiring the owner to remove the thing attached and restore the dividing fence to a reasonable standard, having regard to its state before the thing was attached.
In response to Mr Makowiecki’s claim, Ms Radulovic:
(a)admits that she added on a three besser brick wall on the edge of the top of the bricks for the fence, and says that this was done with the permission of Mr Makowiecki given via text message – this is shown on the photograph labelled ‘Addon (sic) is 15 metres full length of besser brick fence’;
(b)says as to the other items:
(i)      regarding the additional besser brick structure, she added 1 brick to ‘cap off’ the existing fence, which is shown in the photograph ‘Peices (sic) of wood wedged up against new fence’ and depicted above a milk crate;
(ii)      the ‘new fence’ depicted in that photo is only a side gate and a stray piece of timber was retrieved by her granddaughter; and
(iii)     the screen she built is not attached to the fence and is between 55 – 75cm inside her property.
One of the threshold requirements for an order under s 27(2) is that the adjoining owner has not consented to the attachments. Ms Radulovic points in her submissions to a text message dated 2 July 2021 from Mr Makowiecki to herself as evidence that Mr Makowiecki consented to the besser brick wall. It is in the following terms:
I Paul Makowiecki spoke to contractors who are doing the work to repair your driveway and I do give them permission to add to fence. You originally told me to stop work and wouldn’t let us finish the fence, If any damages occur it is your responsibility to fix them, As spoken on phone it’s still waiting Qcat decition (sic) outcome thank you Maka. (Emphasis added)
This text message was in fact filed by Ms Michajlow on behalf of Mr Makowiecki on 20 July 2021. In the accompanying unsigned statement, the message was not correctly transcribed. The crucial reference to Mr Makowiecki’s giving his ‘permission’ to the contractors was left out. I consider this to be deliberately misleading and consistent with my conclusion that the evidence from Mr Makowiecki is unreliable.
The consent was formal in its expression and was not confined in any way, save that it might only refer to works undertaken by that particular contractor and authorised the contractor to ‘add to’ the fence, and that the condition of the consent was that Ms Radulovic was responsible for any damage to the fence. Mr Makowiecki stated in the hearing that he only gave permission for the initial three besser brick add-on, and that was what I understood to be Ms Radulovic’s understanding also.
I consider that the onus was on Mr Makowiecki to establish on the balance of probabilities that the attachments were not consented to. I am not satisfied on the balance of probabilities that Mr Makowiecki did not consent to Ms Radulovic’s works to the extent of the three besser brick addition.
As to the ‘new fence’ and the additional besser brick structure, the photograph I have mentioned, and other photographs whose distinguishing feature is the presence of milk crates, is consistent with Ms Radulovic’s description of a side gate and not inconsistent with her assertion that the addition of the besser brick was capping to the existing fence. The photographs are inconclusive in relation to the screen.
I prefer Ms Radulovic’s version of events for the reasons I have given. Mr Makowiecki has not demonstrated that these structures unreasonably and materially alter or damage the dividing fence. Ms Michajlow submitted that the structures were putting pressure on the fence, but did not point to independent evidence of this. I am not satisfied on the balance of probabilities that the conditions of s 27(1) of the NDA are satisfied.
Accordingly, I decline to make an order under s 27(2).

Order

The Application is dismissed.