Nunn v Boyer
[2017] QCAT 327
•17 July 2017
| CITATION: | Nunn & Anor v Boyer & Anor [2017] QCAT 327 |
| PARTIES: | Christopher Nunn Rachel Nunn (Applicants) |
| v | |
| April Boyer Matthew Boyer (Respondents) |
| APPLICATION NUMBER: | MCDO742/17 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 2 June 2017 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Martin, Justice of the Peace |
| DELIVERED ON: | 17 July 2017 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | Application to dismiss or strike out is refused. |
| CATCHWORDS: | REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where application to strike out/dismiss filed prior to hearing – where jurisdictional issues exist with respect to urgent fencing work, filing and serving of a dividing fences dispute application – whether sufficient information on the file to trigger a strike out or dismissal – whether the applicants have complied with the time limits Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 13, s 28, s 31 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
REASONS FOR DECISION
Background
This is a minor civil dispute – dividing fences.
It appears that the claim was filed on 13 April 2017.
I was unable to find a Form 53, Application for minor civil dispute – dividing fences, on the file.
There was a Form 2, Notice to contribute for fencing works, dated
6 March 2017, on the file. The Form 2 was accompanied by an undated quotation and unsigned contract from Wilson Fencing.
The dismiss/strike out application
On 15 May 2017, the Respondents filed a Form 40, Application for miscellaneous matters in the Brisbane Registry.
It came before me as a chambers application on 2 June 2017.
They sought that the application be dismissed or struck out on the grounds that:
a)They have received a Form 2, Notice to contribute, but not a Form 53, Application for minor civil dispute – dividing fences.
b)The application is out of time.
c)There is no ground for contribution to a boundary fence as the current fence was constructed without permission and there was no urgent need.
There are two relevant Acts:
a)The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the Neighbourhood Disputes Act”); and
b)The QCAT Act.
The Neighbourhood Disputes Act considerations
It appears from the file that the issue concerns an existing dividing fence.
It appears that the fencing work has been done; however, it is uncertain from the file whether the fencing work was required and whether it can be characterised as urgent under the Neighbourhood Disputes Act, s 28. It seems that it may not be urgent as a Form 2, Notice to contribute, was served pursuant to the same Act, s 31.
As there is no Form 53, Application for minor civil dispute – dividing fences, on the file, I could not determine whether the time limits prescribed in the Neighbourhood Disputes Act had been complied with by the Applicants.
Further, there was not sufficient information on the file where one could make a determination about whether the fence is a sufficient fence pursuant to the same Act, s 13.
I considered that there might well be jurisdictional issues that would be best considered at hearing.
The QCAT Act considerations
The QCAT Act, s 47 and s 48, deals with dismissing/striking out an application.
Section 47(1) provides that an application may be dismissed/ struck out if the tribunal considers the proceeding is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.
Section 48 deals with dismissal/striking out if a party is acting in a way that unnecessarily disadvantages another party.
Having carefully reviewed the file, I did not consider that there was sufficient information before me that would trigger or both of these sections to a sufficient degree of certainty and the application would be best considered at hearing.
Order
Application to dismiss or strike out is refused.
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