Mardon v Holmkvist - [2020] QCATA 108

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mardon v Holmkvist [2020] QCATA 108

PARTIES: SHANE COLIN MARDON

(appellant)

v

MONICA HOLMKVIST

(respondent)

APPLICATION NO/S:

APL139-19

ORIGINATING APPLICATION NO/S:

MCDO 30/19 (Townsville)

MATTER TYPE:

Appeals

DELIVERED ON:

14 July 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:
1. Leave to appeal is granted.

2. The decision made on 4 April 2019 in MCDO 30/19 (Townsville) is amended by revoking order 2.

CATCHWORDS:
REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where adjoining owner erected a substantial fence close to the neighbour’s boundary – whether under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) the neighbour can insist on a fence being erected on the boundary and the cost to be shared

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where tribunal decided a fence on the boundary was not required because of a substantial fence on adjoining land – where the substantial fence was incomplete at the time of the hearing – whether the tribunal could order that it be completed

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – where tribunal exercised its discretion in a fencing dispute in the erroneous belief it could make a particular order – where an undertaking to achieve the same purpose would have been offered if required – whether on appeal the tribunal’s exercise of its discretion about the dividing fence can remain undisturbed

Acts Interpretation Act 1954 (Qld), s 14, s 14B, s 32CA
Dividing Fences Act 1991 (NSW), s 14
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 7, s 13, s 35

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13, s 114, s 131, s 132, s 133, s 218, s 219

Alliance Security Australia Pty Ltd v House Secure Pty Ltd [2014] QCATA 89
New Brunswick, etc., Co v Muggeridge (1859) 4 Drew 686
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Right v Burrett [2020] QCATA 71

REPRESENTATION:

Appellant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

REASONS FOR DECISION

This appeal touches on what happens when an owner of land builds a substantial fence on their own land and to their own specifications and close to a neighbour’s boundary.
In a case where it is not suggested that the substantial fence should be removed, can the neighbour insist that a fence is erected on the boundary and that the cost of this is shared? A tribunal panel comprised of two Justices of the Peace answered ‘no’.
Where the substantial fence was incomplete and open at the time of the hearing, can the tribunal order it to be completed? The panel answered ‘yes’.
The two neighbours, Shane Mardon and…

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 Mardon v Holmkvist

Details

AGLC: Mardon v Holmkvist [2020] QCATA 108
Case: [2020] QCATA 108
Decision Date: 14 July 2020

CaseChat Overview and Summary

The case of Mardon v Holmkvist involved a dispute over the boundaries of land and the erection of a dividing fence. The matter was before the court on appeal from the tribunal which had previously ruled on the matter. The appellant, Mardon, sought to challenge the tribunal's decision that a fence on the boundary was not necessary due to the presence of a substantial fence on the adjoining land. The respondent, Holmkvist, had erected a fence close to the neighbour's boundary which was incomplete at the time of the tribunal hearing. The tribunal had ordered that the fence be completed, but Mardon appealed the decision, arguing that the tribunal had exercised its discretion under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) in error.

The legal issues before the court were whether the tribunal could order that the fence on the boundary be erected and whether the tribunal's exercise of its discretion could be interfered with on appeal. The court needed to determine whether the tribunal had erred in its decision-making process and whether an undertaking to achieve the same purpose would have been offered if required. The court also had to consider whether the tribunal's exercise of its discretion about the dividing fence could remain undisturbed on appeal.

In its decision, the court found that the tribunal had exercised its discretion in the erroneous belief that it could make a particular order, which was not possible under the Act. The court noted that an undertaking to achieve the same purpose would have been offered if required, and that the tribunal's decision was therefore flawed. The court granted leave to appeal and amended the tribunal's decision by revoking order 2, which had ordered that the fence be completed. The court found that the tribunal's exercise of its discretion about the dividing fence could not remain undisturbed on appeal and that the decision was therefore flawed.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The decision made on 4 April 2019 in MCDO 30/19 (Townsville) is amended by revoking order 2.

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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