McLeod v Rollason - [2023] QCATA 127

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McLeod v Rollason [2023] QCATA 127

PARTIES:

GRAHAM MCLEOD

(applicant/appellant)

v

MATTHEW ROLLASON

(first respondent)

and

KIAN ROLLASON

(second respondent)

APPLICATION NO/S:

APL172-23

ORIGINATING APPLICATION NO/S:

MCDT1233-22 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

27 September 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

IT IS THE DECISION OF THE APPEAL TRIBNAL THAT:

1.     Leave to appeal is granted.

2.     The appeal is allowed.

3.     The decision of 14 June 2023 is set aside.

4.     The application in MCDO1233-22 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application for a minor civil dispute fence dispute filed seven days after the notice to contribute – where notice to contribute not produced to the tribunal – where premature filing of application and abridgement of time not considered

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 9, s 20, s 31

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 61, s 143, s 145, s 146

Cachia v Grech [2009] NSWCA 232

Cameron v Spalding [2012] QCATA 145
Ericson v Queensland Building Services Authority [2013] QCA 391
Fisher v Wenzel [2019] QCAT 295
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Pai & Anor v Daubney & Anor [2023] QCATA 39

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES & REPRESENTATION:

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

What is this application about?

On 25 October 2022 the Rollasons brought an application in the minor civil dispute (‘MCD’) jurisdiction for orders that the existing timber dividing fence shared with their neighbour, Mr McLeod be replaced with a Colourbond fence, with the cost of the new fence to be shared equally.[1]
[1]MCDO1233-22, filed in Brisbane.
Mr McLeod does not want a new fence or believe that the existing fence is insufficient but was unsuccessful in resisting the application and on 14 June 2023 the Tribunal below made an order that the existing fence be replaced with a Colourbond fence to which Mr McLeod was to contribute $4,497.00 (‘the decision’).
Mr McLeod wants to appeal the decision, but to do so, leave is first required.[2]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 143(3) (‘QCAT Act’); Application for leave to appeal or appeal filed 14 June 2023.
On 28 July 2023 the Appeal Tribunal made an interim order suspending the operation of the decision, and issued the following directions:
5. The Appeal Tribunal intends to consider as a preliminary matter whether leave to appeal should be granted and the decision made on 14 June 2023 be set aside on the ground that the Tribunal had no jurisdiction to…

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 McLeod v Rollason

Details

AGLC: McLeod v Rollason [2023] QCATA 127
Case: [2023] QCATA 127
Decision Date: 27 September 2023

CaseChat Overview and Summary

In the matter of McLeod v Rollason, the respondent appealed a decision of the Magistrates Court of Victoria, which involved a minor civil dispute regarding a boundary fence between neighbours. The respondent contended that the application for the dispute was filed seven days after the notice to contribute, and that the notice to contribute was not produced to the tribunal. The respondent argued that the premature filing of the application and the abridgement of time were not considered in the original decision.

The legal issues in this case were whether the appeal tribunal had the jurisdiction to hear the appeal and whether the appeal was based on an error of law. The respondent argued that the tribunal erred in law by not considering the premature filing of the application and the abridgement of time.

The appeal tribunal found that the respondent had the right to appeal and that the appeal was based on an error of law. The tribunal noted that the premature filing of the application and the abridgement of time were significant factors that should have been considered in the original decision. The tribunal found that the original decision was flawed and set it aside. The tribunal also dismissed the application in MCDO1233-22.

The appeal tribunal granted leave to appeal and allowed the appeal. The decision of 14 June 2023 was set aside and the application in MCDO1233-22 was dismissed. The tribunal found that the respondent had established a case for appeal and that the error of law in the original decision warranted the setting aside of the decision and the dismissal of the application.

Orders

Orders of the court

IT IS THE DECISION OF THE APPEAL TRIBNAL THAT:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The decision of 14 June 2023 is set aside.

4. The application in MCDO1233-22 is dismissed.

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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