McMah v Burgess - [2017] QCAT 422

CITATION:	McMah & Anor v Burgess [2017] QCAT 422
PARTIES:	Douglas McMah Alenna McMah (Applicants)
v
Judith Burgess (Respondent)
APPLICATION NUMBER:	MCDO200/17
MATTER TYPE:	Other minor civil dispute matters
HEARING DATE:	11 July 2017 and 15 August 2017
HEARD AT:	Southport
DECISION OF:	Adjudicator Mewing
DELIVERED ON:	12 October 2017
DELIVERED AT:	Southport
ORDERS MADE:	1. A new retaining wall be constructed to replace the existing retaining wall located on Mr and Mrs McMahs’ property as soon as possible, but in any case by no later than 30 November 2017; 2. Mr and Mrs McMah shall be solely responsible for arranging and paying for removal of the old retaining wall and construction of the new retaining wall; 3. Mr and Mrs McMah shall be responsible for arranging removal of the old timber fence; 4. Within seven (7) days of removal of the old timber fence, Mrs Burgess is to pay to Mr and Mrs McMah 50% of the cost (as evidenced by an invoice from a fully licenced, independent third party contractor) attributable to its removal and disposal; 5. Within two (2) weeks of completion of the retaining wall, a new dividing fence is to be erected on the common boundary between the properties of the parties; 6. The fence must be constructed of Colourbond and in accordance with the quotation dated 11 August 2017 by Dirt Cheap Fencing for a total of $2,370.00 (a copy of which is attached to this Order); 7. Mrs Burgess is to pay to Mr and Mrs McMah $1,185.00 within 7 days of completion of the fence, or if Mr and Mrs McMah use a fully licenced third party contractor other than Dirt Cheap Fencing, Mrs Burgess shall be responsible to pay $1,185.00 or 50% of the new contractor’s quote (whichever is lesser) within seven (7) days of completion; 8. If a temporary fence is required to contain animals, etc, during the period during which there is no dividing fence, that is the responsibility of each party; and 9. The parties are at liberty to apply for further orders.
CATCHWORDS:	REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – OTHER MATTERS – where neighbours in dispute over dividing fence – where retaining wall forms part of dividing fence – whether parties equally liable for cost of replacement of dividing fence – whether landowner of land excavated prior to their ownership solely liable for replacement of retaining wall Neighbourhood Disputes (Dividing Fences and Trees) Act (Qld) 2011, s 3, s 12, s 19, s 21, s 31, s 35 Property Law Act 1974 (Qld), s 179 Leakey v National Trust [1980] QB 485 Levet and Levet v Dalla [2012] ACTSC 23 Yared v Glenhurst Gardens [2002] NSWSC 11
APPEARANCES:
APPLICANTS:	Mr Douglas McMah and Mrs Alenna McMah, in person
RESPONDENT:	Mrs Judith Burgess, in person

REASONS FOR DECISION

The Application

Mr and Mrs McMah are the registered owners of property that shares its rear boundary with property owned by Mrs Burgess.…

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 McMah v Burgess

Details

AGLC: McMah v Burgess [2017] QCAT 422
Case: [2017] QCAT 422
Decision Date: 12 October 2017

CaseChat Overview and Summary

The matter of McMah v Burgess involved a dispute between the McMahs and the Burgesses over the maintenance and replacement of a retaining wall and a dividing fence on their shared property boundary. The dispute was heard in the Magistrates’ Court of Victoria. The primary issue for the court to decide was the division of responsibility between the parties for the replacement of the retaining wall and the timber fence, given that the retaining wall had been constructed before the McMahs owned the property, and the timber fence was in a state of disrepair.

The court considered the legal principles governing the maintenance of boundaries and fences in such disputes, particularly where there is a retaining wall. It was noted that while the retaining wall was constructed before the McMahs owned the property, the McMahs were responsible for its maintenance as it had become part of the dividing fence. The court concluded that the parties should share the cost of replacing the timber fence, with the Burgesses responsible for half of the removal costs and half of the construction costs of the new fence. The court also ordered that the McMahs were responsible for the replacement of the retaining wall, as it was part of the dividing fence and thus part of their property.

In light of the findings, the court issued specific orders to ensure the timely replacement of the retaining wall and the erection of a new dividing fence. The McMahs were to arrange and pay for the removal of the old retaining wall and the construction of a new one, while the Burgesses were to contribute to the cost of removing the old timber fence and pay half of the cost of the new dividing fence. The court also provided a detailed plan for the construction of the new fence, specifying the materials and the cost, and set deadlines for the completion of the works. Finally, the court left the door open for further applications if necessary.

Orders

Orders of the court

1. A new retaining wall be constructed to replace the existing retaining wall located on Mr and Mrs McMahs’ property as soon as possible, but in any case by no later than 30 November 2017;

2. Mr and Mrs McMah shall be solely responsible for arranging and paying for removal of the old retaining wall and construction of the new retaining wall;

3. Mr and Mrs McMah shall be responsible for arranging removal of the old timber fence;

4. Within seven (7) days of removal of the old timber fence, Mrs Burgess is to pay to Mr and Mrs McMah 50% of the cost (as evidenced by an invoice from a fully licenced, independent third party contractor) attributable to its removal and disposal;

5. Within two (2) weeks of completion of the retaining wall, a new dividing fence is to be erected on the common boundary between the properties of the parties;

6. The fence must be constructed of Colourbond and in accordance with the quotation dated 11 August 2017 by Dirt Cheap Fencing for a total of $2,370.00 (a copy of which is attached to this Order);

7. Mrs Burgess is to pay to Mr and Mrs McMah $1,185.00 within 7 days of completion of the fence, or if Mr and Mrs McMah use a fully licenced third party contractor other than Dirt Cheap Fencing, Mrs Burgess shall be responsible to pay $1,185.00 or 50% of the new contractor’s quote (whichever is lesser) within seven (7) days of completion;

8. If a temporary fence is required to contain animals, etc, during the period during which there is no dividing fence, that is the responsibility of each party; and

9. The parties are at liberty to apply for further orders.

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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