Marshall v Twidale - [2021] QCAT 414

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Marshall v Twidale [2021] QCAT 414

PARTIES: ALISON MARSHALL

(applicant)

v

HENRY TWIDALE

(respondent)

APPLICATION NO/S:

MCDO1010-21

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

22 November 2021

HEARING DATE:

18 October 2021

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Marshall

ORDERS:

1.       The Respondent must remove the attachment to the Applicant’s fence and reinstate that part of the fence which he removed within 21 days of the date of this order.

2.       If Order 1 is not complied with the Applicant is entitled to have the work performed by a suitably licensed contractor.

3.       Should the Applicant be required to carry out work to reinstate that part of the sufficient dividing fence removed by the Respondent in default of it being done by the Respondent, the suitably licensed contractor shall be entitled to enter the Respondent’s property to carry out the work subject to the Applicant giving 14 days written notice of that intention to the Respondent.

4.       The costs incurred by the Applicant in engaging a suitably licensed contractor to reinstate the sufficient dividing fence in default of the Respondent reinstating it are recoverable from the Respondent as a debt without further notice to the Respondent.

5.       The Respondent to pay to the Applicant the amount of $27.90, being the filing fee for the Application, within 7 days of the date of this order.

6.       Liberty to apply.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant removed the existing dividing fence to build a retaining wall and a new fence – where the applicant seeks orders including for half the cost of erecting the new fence – whether the fence is a sufficient dividing fence.

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), 13(1)(c)(i), s 13(1)(c)(ii), s 13(2).

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 83.

Thompson v Cannon [2020] QCAT 109

Cordingley v Jarvis [2012] QCAT 701

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Background

The Applicant is the registered owner of land in Ashgrove, Queensland. The Respondent is the registered owner of land which shares a common side boundary with the Applicant’s land.
The Applicant filed an Application for minor civil dispute – dividing fences in Form 53 on 20 September 2021 (the Application) seeking orders under the Neighbourhood Disputes (Dividing Fences and Trees)Act 2011 (Qld) (the Act), as well as an Application for interim order on Form 41.
Prior to this dispute, a weldmesh fence was considered by both parties to be a sufficient dividing fence between the properties.
The events leading to the dispute
The Applicant has undertaken building work which included a change to the existing ground levels of the property. The Applicant considered the existing weldmesh dividing fence (the weldmesh fence) was no longer suitable and that a retaining wall was required with a timber paling fence on top (the new fence).
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 Marshall v Twidale

Details

AGLC: Marshall v Twidale [2021] QCAT 414
Case: [2021] QCAT 414
Decision Date

CaseChat Overview and Summary

The matter of Marshall v Twidale was heard by the Queensland Civil and Administrative Tribunal (QCAT) in Brisbane on 18 October 2021, with Adjudicator Marshall delivering the decision on 22 November 2021. The Applicant, Alison Marshall, is the registered owner of land in Ashgrove, Queensland, and the Respondent, Henry Twidale, is the registered owner of the land that shares a common boundary with the Applicant’s land. The Applicant filed an Application seeking orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) as well as an Application for interim order on Form 41. The Applicant sought orders to prevent the removal or alteration of the existing weldmesh dividing fence, and an order that the new fence is within the Applicant’s property. If the tribunal finds the new fence a sufficient dividing fence, the Applicant seeks an order for half the cost of erecting the new fence, ongoing contribution to the upkeep of the new fence; compensation for the loss of the Applicant’s land which, through adverse possession by the Respondent, would effectively become part of the Respondent’s property if the weldmesh fence was removed.

The legal issues before the tribunal were whether the fence built by the Applicant on the surveyed boundary was a sufficient dividing fence, whether the weldmesh fence was a sufficient dividing fence, and whether costs can be awarded to the Respondent based on Thompson v Cannon. The tribunal found that the fence built by the Applicant was not a sufficient dividing fence as it was within the Applicant’s property. The tribunal was satisfied that the weldmesh fence was a sufficient dividing fence between the properties of the Applicant and the Respondent, pursuant to sections 13(1)(c)(ii) and 13(2) of the Act. The tribunal rejected the Respondent’s request to be reimbursed for his legal costs based on Thompson v Cannon, as the general rule is that parties bear their own costs in the Tribunal.

The tribunal ordered that the Respondent must remove the attachment to the Applicant’s fence and reinstate that part of the fence which he removed within 21 days of the date of this order. If Order 1 is not complied with the Applicant is entitled to have the work performed by a suitably licensed contractor. Should the Applicant be required to carry out work to reinstate that part of the sufficient dividing fence removed by the Respondent in default of it being done by the Respondent, the suitably licensed contractor shall be entitled to enter the Respondent’s property to carry out the work subject to the Applicant giving 14 days written notice of that intention to the Respondent. The costs incurred by the Applicant in engaging a suitably licensed contractor to reinstate the sufficient dividing fence in default of the Respondent reinstating it are recoverable from the Respondent as a debt without further notice to the Respondent. The Respondent must pay to the Applicant the amount of $27.90, being the filing fee for this Application, within 7 days of the date of this order.

Orders