O'Connell v Walker - [2012] QCAT 631

CITATION:

O’Connell v Walker [2012] QCAT 631

PARTIES:	Dominic John O’Connell (Applicant)
v
Benjamin Walker (First Respondent) Merit Developments Pty Ltd (Second Respondent)

APPLICATION NUMBER:

BDL098-11

MATTER TYPE:

Building matters

HEARING DATE:

3 August, 2012

HEARD AT:

Maroochydore

DECISION OF:

Ann Fitzpatrick, Member

DELIVERED ON:

11 December, 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

2. The first respondent’s counter-application is dismissed.

CATCHWORDS:

Dividing fence dispute – domestic building dispute – adequacy of repair of damaged fence and retaining wall

Dividing Fences Act 1953, s 16

Stoneman v Lyons [1975] HCA 59

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Self represented

RESPONDENT:

Both self represented

REASONS FOR DECISION

Background

The applicant, Mr O’Connell, is the owner of land at 11 Stardust Court, Sunrise Beach. The first respondent, Mr Walker, is the owner of adjoining land at 9 Stardust Court, Sunrise Beach. The second respondent, Merit Developments Pty Ltd (Merit) is a construction company which was engaged by the applicant to construct a dwelling at 11 Stardust Court.
Mr O’Connell engaged Merit to clear the site of vegetation prior to construction. Merit engaged Coastal Earth and Treeworx as an excavator operator to do that work, commencing on 7 August, 2010. During the course of clearing along the eastern boundary, a section of fence and the retaining wall below moved so that they were leaning towards Mr Walker’s house.
Merit agreed to repair the damaged fence and retaining wall and undertook repair work on 6 October, 2010 after negotiations between Mr Walker and Mr O’Connell, as to replacement of the wall and fence broke down.
Mr O’Connell asserts that the repair work was inadequate and caused further damage and that there is ongoing risk to his and the neighbouring property as a result of the structure of the retaining wall being compromised.
Mr O’Connell’s application was first made against Mr Walker seeking a contribution from Mr Walker for repair or reconstruction of the retaining wall and fence on the basis that the retaining wall and fence were rotten and termite affected. He had served a written notice, dated 27 October, 2010 on Mr Walker, under section 16(1) of the Dividing Fences Act 1953 requiring his contribution to the cost of repair of the whole fence and retaining wall. At the hearing Mr O’Connell suggested that he now no longer sought any relief from Mr O’Connell on the basis that he contended all the problems with the fence and the retaining wall were the fault of Merit.
Mr Walker’s response was that the fence and retaining wall were in good repair and that as Mr O’Connor’s contractor had damaged the fence, it was Mr O’Connor’s responsibility to repair the fence, pursuant to section 16(2) of the Dividing Fences Act 1953. He had previously delivered a notice, dated 22 September, 2010, requiring Mr O’Connell to attend to repair of the damaged retaining wall and fence. He has counter-applied against Mr O’Connor for an order that he repair the fence and…

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 O'Connell v Walker

Details

AGLC: O'Connell v Walker [2012] QCAT 631
Case: [2012] QCAT 631
Decision Date

CaseChat Overview and Summary

O'Connell v Walker is a case in which the applicant, Dominic John O'Connell, sought to hold the respondents, Benjamin Walker and Merit Developments Pty Ltd, liable for the cost of repair of a retaining wall and fence that were damaged by Merit's contractor during vegetation clearing work. O'Connell sought to hold Walker liable under the Dividing Fences Act 1953 and Merit liable for negligence. The case was heard by Ann Fitzpatrick, a member of the Queensland Civil and Administrative Tribunal, on 3 August, 2012, and delivered on 11 December, 2012. The tribunal dismissed O'Connell's application against both respondents.

The central issue before the tribunal was whether O'Connell had established that Merit was negligent in damaging and repairing the fence and retaining wall, and whether Walker was liable under the Dividing Fences Act 1953 for the cost of repair. The tribunal found that while Merit's contractor had caused damage to the fence and retaining wall, Merit had undertaken satisfactory repair work. The tribunal found that there was insufficient evidence to establish that the footings of the retaining wall were cracked and that the driveway on O'Connell's property was compromising the retaining wall. Accordingly, the tribunal found that Merit had fulfilled its contractual obligations and that O'Connell had not suffered sufficient loss to establish a claim in negligence against Merit. The tribunal also found that O'Connell had abandoned his claim against Walker.

The tribunal dismissed both O'Connell's application and Walker's counter-application. The tribunal did not make any orders requiring further work to be done by O'Connell. The tribunal did not determine whether the retaining wall could be the subject of orders under the Dividing Fences Act 1953.

Orders