McKeown v Reid - [2013] QCAT 345

CITATION:

McKeown v Reid [2013] QCAT 345

PARTIES:	Christine Maren McKeown (Applicant)
V
Ron Reid & Carol Reid (Respondents)

APPLICATION NUMBER:

MCDO670-13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

17 June 2013

HEARD AT:

Brisbane

DECISION OF:

John Bertelsen, Adjudicator

DELIVERED ON:

28 June 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Each party contribute equally to survey costs of $1,072.50.

2. In so far as the Dividing Fence is concerned the Tribunal makes the following orders:

3. A new dividing fence is to be erected on the common boundary between the properties of the parties including approximately one half metre required to be reconstructed by the body corporate.

4. The fence is to be constructed in accordance with the quote dated 2 May 2013 from Amazing Fencing (QLD) Pty Ltd for $1,213.00.

5. The fence construction is to be arranged and paid for by the applicant.

6. The construction of the fence is to be completed within 3 months.

7. The respondents are to pay to the applicant the sum of $606.50 within 14 days of being notified in writing by the applicant of the completion of the fence.

8. In the event of non compliance liberty to apply.

CATCHWORDS:

DIVIDING FENCE - Location of existing fence – survey of boundary – portion of fence to be replaced – apportionment of survey costs – fence to be relocated

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Christine Maren McKeown

RESPONDENT:

Ron Reid & Carol Reid

REASONS FOR DECISION

Initial applications

On 4 April 2013 Ms McKeown filed an application for minor civil dispute – dividing fence seeking orders as follows:
a) An order about the line on which fencing work is to be carried out;
b) An order that fencing work be done;
c) An order about the kind of material to be used in fencing work;
d) An order about the amount the parties have to contribute or pay for fencing work;
e) An order about which part of the dividing fence is to be constructed or repaired; and
f) An order about when the fencing work is to be done.
It appears the application was filed amid concerns that the respondents Mr and Mrs Reid (the Reids) were about to “undertake unauthorised demolition of part of the dividing fence on the common boundary line”.
On 8 April 2013 Ms McKeown filed an application for interim orders seeking:
1.That the respondents be ordered to cease immediately all demolition and construction work on the fence separating our properties until the matter is heard and determined by QCAT.
2.That the respondents be ordered to reinstate the approximate 2 metres of timber palings they removed on 7 April 2013 and restore the fence to its original state until the matter is heard and determined by QCAT.
On 9 April 2013 the applications came before the Tribunal.

Background and evidence

On 5 March 2013 the Reids solicitors, Smith & Stanton wrote to Ms McKeown pointing out that the existing fence in large part was not constructed on the true boundary between unit 28 (Reid) and unit 49 (McKeown); that the fence was substantially inside Reids property. This assertion was supported by a preliminary survey sketch from Mr McDonald, a surveyor retained by the Reids for that purpose. After estimating that 11 metres of fence required replacement at a cost of $836.00 the letter went on to state:
“Our clients are prepared to pay for Mr McDonald’s survey costs and half the fence costs on the condition that you pay the other half of the fence costs (being approximately $418.00). Please note that Mr McDonald’s survey will not be officially completed until he pegs out the boundary with wooden stakes. Our clients have asked Mr McDonald not to peg out the boundary until such time as our clients have a response from you … if it is necessary to go to this stage, our clients have indicated that they will no longer be willing to pay for the full cost of the surveyor and would ask for half the costs to be reimbursed by you.”
The letter further stated that the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (the NDA) “allows our clients to apply to a Court to have the Court approve the boundary line and make an order for the cost of the survey and fence replacement to be shared equally between neighbours.”
Ms McKeown replied directly to the Reids by letter dated 15 March 2013 suggesting the Reids proposal lacked clarity but crucially stating “although we agree that the existing dividing fence may not be in the correct position we are not in agreeance with the new position you propose in your letter and diagram. In the event that this matter cannot be resolved by the owners of units 28 and 49 we believe that the best avenue will be to have all fences removed and replaced exactly to accurate survey pegs (unless impracticable).”
By response dated 16 March 2013 the Reids suggested that a complete survey should be done.
By further response dated 24 March 2013 Ms McKeown stated, “we clearly expressed our view that the plan provided by Mr Ken McDonald on 5 March 2013 was correct for the position of the common boundary line (blue line) between our 2 units” but goes on to talk about discrepancies in particular the position of the existing fence as delineated by Mr McDonald as being incorrect; discrepancies regarding access to the side of Reids property; concerns about maintaining adequate access and use of the McKeown’s side of the property; what appears to be an offer for exchange of a triangular parcel of land for maintenance of adequate access (by leaving part of the existing fence where it is); and agreeing to relocate the remainder of the existing fence.
Finally Ms McKeown stated, “we are in agreeance with Mr McDonalds plan as to the position of the common boundary line between the 2 units (blue line on survey). After legal advice we have received, it is our view that any cadastrial survey conducted by you now will be for your benefit and at your cost.”
Correspondence and meetings between the parties up to this time appear to have been an attempt to resolve problems arising from the existing fence not being on the correct boundary line. That certainly is encouraged by section 30 of the NDA. However for the purpose of contributing to fencing work a notice to contribute must be given pursuant to section 30(2) NDA.
It was suggested and the parties agreed that a notice to fence ought be issued and served and quotes obtained so that the application could again come back before the Tribunal without the parties having to start all over again with fresh applications. This was particularly so as it was apparent Ms McKeown was in the process of selling her unit and both parties were eager for finality.
As it was clear to the Tribunal that the survey plan forwarded with the Smith and Stanton letter of 5 March 2013 was simply a sketch with virtually no measurements for ascertaining the boundary line and in the nature of a preliminary plan only (as opposed to identification survey IS 208365 subsequently signed and dated 11 May 2013 by Mr McDonald’s surveyor) it was considered necessary to have Mr McDonald, surveyor attend Ms McKeown’s property, on notice, and complete the survey to proper identification standard by, amongst other things, placing marker pegs exactly defining the boundary line. It was agreed that Mr McDonald give at least a weeks notice of intention to enter Ms McKeown’s property with Ms McKeown stating that she would “like to be there when he does it”. Tribunal orders were made as sought in Ms McKeown’s application for interim orders filed 8 April 2013.
It was generally acknowledged that the body corporate for Chermside Villas ought be notified on the basis that a very minor portion of the existing fence encroached on common property; that any new fence on the true common boundary would involve the shifting of approximately 0.5 metres of fencing located on common property.
On or about 24 April 2013 the Reids gave notice to contribute for fencing work attaching 2 fencing quotations as follows:
1.Quote by Trevor Pointer for 10.5 metres paling fence - $843.00.
2.Quote by Jims Fencing dated 13 April 2013 for 10.5 metres paling fence - $1,085.15.
The total length of common boundary between units 28 and 49 to be fenced is 14.477 metres according to identification survey provided by Mr McDonald in identification survey IS208365 with the existing fence (common property portion) to be shifted as being from 0.503 metres to 0.455 metres.
Ms McKeown furnished her own quote from Amazing Fencing (QLD) Pty Ltd dated 2 May 2013 for $1,213.00. This quote identified 14.6 metres of common boundary fencing and half metre applicable to body corporate fence repositioning.
Some 12 odd emails/pieces of correspondence passed between the parties highlighting disagreements and proffering offers to no avail. A crucial item of contention was whether approximately 10.5 metres or 14.6 metres of existing common boundary fencing required relocation. The difference of approximately 4.1 metres being that portion of existing fencing at the northern end of the boundary between unit 28 and 49 and proceeding southeast to the building gutter line of unit 49. The Reids asserted that it was not necessary to relocate this portion because it was only a matter of centimetres out of alignment. Ms McKeown asserted that even though it was marginally out of alignment it was still out of alignment; that effectively the whole of the common boundary was out of alignment; that the whole of the common boundary fencing ought to be relocated so as to have the issue of the position of the fencing laid to rest once and for all.
It became apparent during the course of the subsequent hearing on 17 June 2013 that Ms McKeown had sold her unit having signed a contract which included a condition that the completion of same was subject to resolution of this fencing issue in a satisfactory manner. The Reid’s indicated to the Tribunal that they were in the process of selling their unit. It was clear to the Tribunal that each party wanted a quick and decisive resolution to the fencing issue.

Conclusions

Each of the parties is entitled to have the dividing fence placed on the correct common boundary.
The dwellings constituting units 28 and 49, in relation to the common boundary, have been constructed very close together. Given the close proximity of the units it is essential that any new fence be erected on the exact boundary line.
The existing fence is not on the exact boundary being out of kilter and largely within the Reids property by up to half a metre.
The initial preliminary survey obtained by the Reids cost them $600.00. It was procured and forwarded to Ms McKeown by the Reids without reference to Ms McKeown in the first instance i.e. Ms McKeown was not given notice of the Reids intention to retain a surveyor for the purpose of defining the common boundary pursuant to section 40(2) NDA. That being so the initial $600.00 is not recoverable as against Ms McKeown.
Ms McKeown however in her email of 15 March 2013 made it clear that she considered the best avenue for resolving the dispute was to “have all fences removed and replaced exactly to accurate survey pegs (unless impracticable)”. The preliminary survey conducted by Mr McDonald simply identifies the degree to which the existing fence is out of kilter appropo the boundary line with recorded measurements being in relation to that abnormally only.
Mr McDonald’s letter of 11 May 2013 to Mr Reid makes it abundantly clear that to properly identify the common boundary it was necessary to mark the boundary corners i.e. marker pegs. Identification survey IS208365 does just that. Ms McKeown was informed to the same effect the same day.
At the conclusion of the hearing on 9 April 2013 the Tribunal made it clear that Mr McDonald was to be given access to Ms McKeown’s premises to place marker pegs as a prerequisite to construction of a new fence on the correct boundary line.
The Tribunal is empowered by the NDA to direct that a survey be conducted (or in this case the continuation of the survey) as a prerequisite to identifying the boundary line on which a dividing fence is to be constructed. The identification survey IS208365 sets out exact boundary distances from marker to marker as well as degrees for present and future delineation of marker points (pegs). It is clear from Mr McDonald’s tax invoice of 11 May 2013 that the preliminary survey was of a rudimentary nature only and that the bulk of his cost is applicable to the completion of the identification and the provision of the identification survey.
This is a circumstance where the Tribunal considered it necessary, given the obvious need for exactitude, that a definitive survey be completed as a prerequisite to the erection of the dividing fence on the exact boundary line. The common boundary in this instance is anything but straight.
The costs of identification post section 40 survey is not disputed at $1,072.50 and that cost ought to be split equally between the parties.
The same reasoning can be applied to the meterage of new relocated fencing to be erected. The quotes obtained by the Reids will only partially solve the boundary issue.
The only quote for the 14.6 metre common boundary (14.447 to be exact) and the approximate 0.5 metre section, the incidental involvement of the body corporate, is that of Amazing Fencing (QLD) Pty Ltd dated 2 May 2013. As it happens it is only marginally higher than the quotes for 10.5 metres obtained by the Reids.
Subject to the terms and conditions of that quote e.g. striking rock, roots the Tribunal is of the view that the whole of the common boundary ought be fenced including the 0.5 metre section to be shifted by arrangement with the body corporate (so long as the body corporate did not have to contribute any money towards this dispute).
The fencing of the whole of the common boundary and the body corporate section is to be undertaken by Amazing Fencing (QLD) Pty Ltd as promptly as is possible given that each of the parties are moving on. Each of the parties ought bear half of the cost as per Amazing Fencing (QLD) quote.

Orders

Each party contribute equally to survey costs of $1,072.50.
In so far as the Dividing Fence is concerned the Tribunal makes the following orders:
A new dividing fence is to be erected on the common boundary between the properties of the parties including approximately one half metre required to be reconstructed by the body corporate.
The fence is to be constructed in accordance with the quote dated 2 May 2013 from Amazing Fencing (QLD) Pty Ltd for $1,213.00.
The fence construction is to be arranged and paid for by the applicant.
The construction of the fence is to be completed within 3 months.
The respondents are to pay to the applicant the sum of $606.50 within 14 days of being notified in writing by the applicant of the completion of the fence.
In the event of non compliance liberty to apply.