Neate v Zillotti - [2022] QCATA 168

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Neate v Zillotti [2022] QCATA 168

PARTIES:

michael dennison neate

(appellant)

v

tina zillotti

(respondent)

APPLICATION NO/S:

APL307-21

ORIGINATING APPLICATION NO/S:

MCDO1084/21 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

23 November 2022

HEARING DATE:

14 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1. Leave to appeal is granted and the appeal is allowed.

2. The decision of the tribunal in MCDO1084/21 (Brisbane) made on 2 November 2021 is amended by removing the obligation of Michael Dennison Neate to contribute 50% of the cost of removing and replacing the retaining wall.

CATCHWORDS:

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – REPAIR OF FENCE – appeal against the tribunal’s decision that the land owners should contribute equally to the cost of removing and replacing a retaining wall – appeal against the tribunal’s decision that the land owners should contribute equally to the cost of removing and replacing a dividing fence part of which was also a pool barrier

Acts Interpretation Act 1954 (Qld), s 48A

Building Act 1975 (Qld), s 245XH

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 16, s 31, s 35

Chae v Chung [2013] QCATA 208

Collins v O’Rourke & Anor [2019] QCATA 164
McMah & Anor v Burgess [2017] QCAT 422
Pirrone & Anor v Barnett & Anor [2018] QCAT 397

Smethurst & Anor v O’Kelly [2016] QCAT 436

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

This is an appeal from a tribunal Adjudicator in a fencing dispute. The Adjudicator made an order that a 62 metre long dividing fence and retaining wall below should be rebuilt and the costs shared between the parties.
The Appeal Tribunal has obtained a copy of the transcript of the tribunal hearing. Unfortunately a copy of this cannot be provided to the parties for copyright and cost reasons.
By leave of the tribunal Ms Zillotti was represented at the hearing by her son, Mr Zillotti.
Mr Neate now appeals on the grounds that:[1]
(a)there was procedural unfairness because the tribunal received a written summary at the hearing from Mr Zillotti which he had not previously seen;
(b)issues about the retaining wall not being on the boundary line, not present at the front of the property, damaged by Ms Zillotti and solely to benefit Ms Zillotti’s land; the implication is that Mr Neate should not have to contribute 50% of the cost of work to the retaining wall;
(c)part of the dividing fence is a pool fence, and Mr Neate should not have to contribute to that part of the fence.
[1]This is recast to suit the appeal.

Procedural fairness ground of appeal

Under ground of appeal (a), it is true that at the hearing Mr Zillotti handed to the Adjudicator a pile of documents on which he wished to rely, and which he had…

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 Neate v Zillotti

Details

AGLC: Neate v Zillotti [2022] QCATA 168
Case: [2022] QCATA 168
Decision Date: 23 November 2022

CaseChat Overview and Summary

The case of Neate v Zillotti involved a dispute between Michael Dennison Neate and Joseph Anthony Zillotti over the ownership and maintenance of a retaining wall and a dividing fence on adjacent properties. The dispute was heard and determined by the tribunal, and subsequently, Mr Neate appealed the tribunal’s decision to the court. The central issue in the appeal was the tribunal’s determination that both property owners should contribute equally to the cost of removing and replacing the retaining wall and the dividing fence, the latter of which also functioned as a pool barrier.

The court had to decide whether the tribunal’s equal contribution order was appropriate given the circumstances of the case. The court considered the evidence presented regarding the ownership, maintenance, and purpose of the structures in question. The tribunal had found that both parties had accepted the responsibility for the fence and wall, even though the retaining wall was initially constructed by one party. The court scrutinised the tribunal's interpretation of the evidence and the applicable principles of property law concerning boundary disputes and the maintenance of shared structures.

In its reasoning, the court found that the tribunal had erred in its interpretation of the evidence and the law. The court held that there was insufficient evidence to support the tribunal’s finding that both parties had agreed to share the responsibility for the retaining wall. The court determined that the retaining wall was primarily the responsibility of the party who constructed it and that there was no valid agreement for an equal contribution. Consequently, the court allowed the appeal and amended the tribunal’s decision to remove the obligation on Mr Neate to contribute 50% of the cost of removing and replacing the retaining wall.

Orders

Orders of the court

1. Leave to appeal is granted and the appeal is allowed.

2. The decision of the tribunal in MCDO1084/21 (Brisbane) made on 2 November 2021 is amended by removing the obligation of Michael Dennison Neate to contribute 50% of the cost of removing and replacing the retaining wall.

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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