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

1. 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.

2. 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.

3. 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.

4. 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. 

5. 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.

6. 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 for an order that Mr O’Connor pay the sum of $3,000.00 being lost rental income as a consequence of not renting his property until the fence was repaired.

7. Mr O’Connell’s amended application asserts a domestic building dispute with Merit which was joined as second respondent.  Mr O’Connell seeks an order that Merit either meet or contribute to the cost of replacement of the fence and retaining wall on the basis that the original damage to the fence and retaining wall was caused by the negligence of Merit’s subcontractor and that the subsequent repair work was negligently performed.  The cost of replacing the retaining wall and fence is claimed at $10,327.00.

8. Merit seeks an order that the application be dismissed insofar as it seeks relief against Merit.

Jurisdiction

1. Insofar as the claim between Mr O’Connell and Mr Walker relies upon relief pursuant to the Dividing Fences Act 1953, this Tribunal is empowered to deal with the matter.  However a question arises as to whether this Tribunal has jurisdiction to make orders with respect to the retaining wall part of the structure the subject of the dispute.  This issue is addressed later in the decision.

2. Insofar as the claim between Mr O’Connell and Merit is a domestic building dispute, this Tribunal is empowered to deal with the matter. I was not addressed by the parties in relation to jurisdiction, however for completeness I note that pursuant to s 77 of the Queensland Building Services Authority Act 1991, the Tribunal may make orders in relation to building disputes.  Building disputes include disputes between an owner and a building contractor, arising out of domestic building work, which is defined by the Domestic Building Contracts Act 2000 to include landscaping and construction of fixtures associated with the erection of a dwelling house.  Retaining walls and fences are examples of that work.  Site work relating to the erection of a dwelling house is also included in the definition of domestic building work.  Accordingly clearing vegetation from site prior to construction is caught by the Act.

3. Insofar as the claim between Mr Walker and Mr O’Connell is a domestic building dispute, this Tribunal is empowered to deal with the matter.  The claim by Mr Walker for lost rental and the cost of landscaping repair work appears to fall within the definition of “domestic building dispute” in the Queensland Building Services Authority Act 1991, being a “claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries.”

Evidence

1. Each of the parties filed statements in the Tribunal to which I have had regard.  Mr O’Connell and Mr Walker and Mr Justin Murphy, Director of Merit gave evidence at the hearing.

2. Mr O’Connell and Mr Walker complain that Merit’s contractor damaged the fence and retaining wall.  They complain that even after the attempted repair, the retaining wall footings are cracked, a retaining wall post is split, part of the fence still leans and sand washes into Mr Walker’s property because no drainage was installed at the retaining wall and no geo technical fabric was put in place to prevent sand washing into Mr Walker’s property.  They express concern that the concrete driveway installed adjacent to the retaining wall will put unacceptable pressure on the retaining wall so that it may fail.

3. Their key concern appears to be the integrity of the retaining wall as a result of allegedly cracked footings, put at greater risk by the driveway on Mr O’Connell’s property adjacent to the retaining wall.  Mr O’Connell says that he is unable to insure the driveway as a result of the compromised retaining wall.

4. Before the Tribunal is a quotation relied upon by Mr O’Connell, which was provided to Mr Walker from Andrew Dux Landscaping, dated 31 July, 2011, in an amount of $10,327.00, to install a new retaining wall and fence and some associated landscaping work.  An attached statement from Andrew Dux records that he observed the timber retaining wall leaning further into 9 Stardust Court.  He says that as a result of sand build up behind the wall there is further pressure placed on the wall.  He commented that there is no draining material or ag pipe installed behind the wall to enable water to drain away.  He notes the new driveway installed on the neighbouring property and says that there is no water catchment to drain water from the driveway.  He considers water is seeping through under the fence and pushes sand onto 9 Stardust Court which is blocking the storm water pick up pits at 9 Stardust Court.

5. Mr Dux was not called to give evidence.

6. Also before the Tribunal and relied upon by Mr O’Connell, is a report to Merit from KG Landscaping and Design, dated 26 August, 2010.  That report reveals photographs of the fence and retaining wall leaning into 9 Stardust Court.  The author of the report, Mr Kay observed that most of the posts on the wall and the fence were showing signs of rot and decay.

7. Mr Kay recommended that the retaining wall be replaced, however he suggested a temporary solution would be to excavate behind the wall and pull back the wall and pin it with new posts.  He stressed that this was not a permanent solution but that the wall and fence could remain intact for several years.

8. Mr Kay commented that the posts on the fence were rotten and would need to be replaced in the near future.  He said the posts on the retaining wall were undersized for the job and did not meet standards for these wall types.

9. Mr Kay was not called to give evidence.

10. Mr O’Connell also relied upon a report from Tod Consulting, Civil and Structural Engineers, to Mr Walker, dated 22 February, 2011.  The author of that report, Mr Gray, visited the property to inspect the retaining wall after repair by Merit and after the driveway had been constructed.  He commented that the retaining wall is less than 1 metre in height and does not require building approval.  He said that the timber elements of the wall are in fair condition with the only visible signs of timber rot to one wale and to one post at the base.

11. Mr Gray said that he did not have information regarding the post footing depth and size.  He expressed the opinion that the retaining wall would not withstand a vehicle loading of 2 tonne or more within a 2 m zone measured horizontally behind the top of the retaining wall with the result that the concrete footings below may have been damaged.  Damage to the footings would result in a loss of the capacity of the footing to the horizontal soil loads from the retained soil.  Damage in the form of cracks to the concrete footings, could also allow penetration of moisture into the footing setting up an environment for timber rot of the posts.  Leeching of sand through gaps in the timber wales was noted.  Mr Gray said that geofabric placed behind the wall before backfilling would have allowed water to drain whilst mitigating sand leeching.

12. Mr Gray was not called to give evidence.

13. Finally the Tribunal was provided with an undated report prepared for Mr Walker by Sunrise Building Services.  The author Mr Harmer, a builder, said that he had been in a position to note the retaining wall and fence prior to its damage.  He considered the retaining wall to have been suitable for its primary purpose of retaining the land.  After the damage he noted the lean on the fence and noted damage evident from the last post at the rear of the property past the internal corner beside the driveway.  He noted the hardwood timber was in good condition with some signs of wear consistent with a wall of this age (10-15 years), but said none of the sleepers or posts had failed during the damage.  He did note one of the top sleepers located opposite the rear of the garage was deteriorated and required replacing.  He noted that one of the posts on the fence had rotted at the base and also required replacing.

14. Mr Harmer inspected the repaired wall and noted that other than along the length of the garage the remainder of the wall remained on a lean.  He noted a large quantity of sand had poured through the repaired section of wall and that one of the posts opposite the rear of the garage had split.

15. In Mr Harmer’s opinion both the original area of damage and the area of attempted repair require work to return the retaining wall and fence to their condition prior to being damaged.  He did not specific the work required.

16. Mr Harmer was not called to give evidence.

17. Mr Walker gave evidence that he observed a gap in the concrete around 1 post which suggested to him that the footing was cracked.  Mr O’Connell gave evidence that sometime after repair of the retaining wall and fence he scraped back soil around 1 post and saw a 2-3 mm crack in the concrete around the post and saw cracks in the concrete around another 2 to 3 posts.  Mr O’Connell attributed any cracking to the original damage sustained by the retaining wall.  In his written evidence before the Tribunal, Mr O’Connell suggested that the Tod report found that the footings were cracked.  In evidence, Mr Walker said the Tod report did not say that there were cracked footings but that such damage would be consistent with an excavator driving along the boundary.

18. Mr Murphy is a registered builder.  His evidence was that Merit was instructed to repair 8 metres of damaged fencing and retaining wall by both Mr O’Connell and Mr Walker.  In undertaking that work, it excavated a trench exposing the retaining wall, inspected the footings, replaced rotten posts with treated posts, cross braced the timber posts, inserted steel reinforcing and re-screwed sleepers with galvanized batten screws and realigned the retaining wall and fence by pulling them back into position.

19. He gave evidence that the damaged length of fence and retaining wall was 8 lineal metres.  He was of the opinion that the last panel of fencing which remains at a lean was not damaged by the excavator.  His evidence was that whilst undertaking the repair Merit attempted to straighten the last post to achieve a straight line, however it was impossible to move the last post.  Because of its immovability, he considered the post had always been out of plumb.

20. Mr Murphy’s evidence was that there was no indication of damaged footings upon inspection.

21. He also said that the excavation revealed there was no drainage control in place to divert or take water away from the wall and there was no black plastic or geofabric installed in this section of wall.  He said attaching any plastic to this section of wall would only increase pressure on the wall as water cannot escape and he decided not to place any plastic or geofabric behind the wall.

22. Mr Murphy’s evidence was that he put the retaining wall back as he found it, however the repair created a better structure than had been present prior to the damage.

23. Finally, Mr Murphy’s evidence was that at a recent site inspection he noted that the repaired section of the fence and the retaining wall below it had not moved in a two year period, substantiating a satisfactory repair.  He points out that the Tod report does not recommend replacement of the existing retaining wall and fence and comments that the timber elements of the wall are in fair condition with the only visible signs of rot to one wale and to one post at the base.  Mr Murphy expressed the view that replacement of the wale and post are a matter of maintenance for Mr Walker and Mr O’Connell to address.

24. Mr Murphy said that any sand leaching eased significantly due to further compaction over time and landscaping to the O’Connell’s property.  I note that Mr O’Connell says he constructed a berm to stem the flow of water through the retaining wall.

Findings in relation to damage to the retaining wall and fence

1. On the basis of evidence common to all the parties, I find that 8 metres of fence and retaining wall along the boundary between the two Stardust Court properties was damaged in the course of work performed by Merit’s contractor.  I accept the evidence of Mr Murphy that no damage was caused to the rest of the retaining wall and fence during the course of the work.

2. I find that after the repair work:

   ·there was for a time, leeching of sand through the retaining wall;

   ·the last panel of the fence continues to lean towards Mr O’Connell’s property;

   ·a retaining wall post is split;

   ·there is a rotten wale and post on the retaining wall;

   ·no black plastic or geofabric was put behind the wall.

3. Despite these issues, I accept the evidence of Mr Murphy and find that a repair of the damaged part of the retaining wall and fence was effected to a reasonable standard, given the age of the retaining wall and fence.  The only evidence to the contrary from any person appearing to have experience in the construction of retaining walls and fences is from Mr Dux and Mr Harmer, neither of whom were available for cross examination.  Accordingly I can attribute only limited weight to their reports.  I found Mr Murphy to be a credible witness, giving his evidence in a clear and straightforward way.  Neither Mr O’Connell nor Mr Walker have any qualifications in the area.

4. I accept the evidence of Mr Murphy that Merit improved the retaining wall from its state at the time of the damage in that rotten timbers were replaced, corroded screws were replaced with galvanized screws, timber posts were cross braced and steel reinforcing was inserted.

5. I accept the evidence of Mr Murphy that the sand leeching through the retaining wall has now resolved due to compaction of the sand and plants growing on Mr O’Connell’s land.  I also note that Mr O’Connell has constructed a berm which has improved the problem.

6. I accept the evidence of Mr Murphy and find that it is a reasonable conclusion to draw that the remaining leaning fence post was always out of plumb given that it was impossible to pull back into place with the heavy machinery employed on the repair work.  I find that the bow in the repaired fence does not render the repaired fence unacceptable, especially given the age of the fence which was said to be in the order of 10 to 15 years.

7. I note the acknowledgement of Mr Murphy of the split retaining wall post and the rotten wale and post on the retaining wall.  I agree with Mr Murphy’s submission that these are matters of maintenance for Mr Walker and Mr O’Connell.

8. In relation to the absence of black plastic, I accept the evidence of Mr Murphy that there was no black plastic evident behind the wall at the time of the repair and that given the lack of drainage behind the wall it would not be advisable for black plastic to be installed as it would stop the natural flow of water through the wall with a consequent build up of pressure against the posts.

9. I accept the evidence of Mr Murphy that when he excavated behind the retaining wall he was in a position to inspect the footings, that he did so and that they were not damaged at the time of the repair. 

10. Given that this is the issue of most concern to both Mr O’Connell and Mr Walker I am surprised that no greater exploration of this issue was undertaken by them other than observation of a gap and some surface cracking.  No photographs of their observations were tendered in evidence.  An engineer was engaged but does not appear to have undertaken any testing.  The engineer merely speculates that if cracking of the footings was present, it may have been caused by the heavy equipment used in the clearing of the site being driven within 2 metres of the boundary.  There is no evidence that is in fact how the excavator worked on the day when the damage occurred.

11. There is simply insufficient evidence before me to demonstrate that the footings are cracked and that they were cracked by the work of Merit’s contractor.  In the absence of such evidence, the only evidence upon which I can rely is the evidence of Mr Murphy that the footings were not cracked when he observed them and effected the repair.

12. There is no engineering evidence on which I can rely to the effect that the driveway is compromising the retaining wall.  Mr O’Connell does not say that he has not been provided with appropriate certification in relation to the construction works undertaken by Merit, including the driveway.  The Tod report does not raise any alarm in relation to the driveway.

13. Apart from speculation by Mr O’Connell and Mr Walker who have no engineering or construction qualifications, there is no evidence that the driveway is compromising the retaining wall.  In fact Mr Murphy says that in 2 years there has been no movement of the wall.  I accept Mr Murphy’s evidence of his observations.

Conclusion in relation to O’Connell’s claim against Merit

1. Mr O’Connell does not fully articulate the legal basis of his claim against Merit, other than to allude to negligent work and to seek the cost of replacement of the whole of the retaining wall and reconstruction of the whole of the fence by way of damages.  Mr O’Connell submits that the retaining wall and fence were damaged as a result of negligent clearing of the site and that the retaining wall and fence were negligently repaired.   

1. Damages for negligence are intended to put an aggrieved party in the position they would have been in, had the negligence not occurred.  On these facts that must mean the damages are sufficient to bring the retaining wall and fence to the standard they were in, prior to the damage which occurred when the site was cleared.

2. Before damages can be awarded Mr O’Connell must establish that he has suffered loss and damage as a result of Merit’s negligence. 

3. Merit has accepted responsibility for the original damage and has undertaken rectification work as a result.  

4. On the basis of my findings in relation to the satisfactory nature of the repair effected by Merit to the damaged retaining wall and fence and my finding that there is no evidence of cracked footings or the retaining wall being compromised by Mr O’Connell’s driveway, I find that Mr O’Connell has not established any loss or damage sufficient to found a cause of action in negligence against Merit.  Accordingly there is no basis upon which to order Merit to pay some or all of the cost of rebuilding the entire retaining wall and fence as sought by Mr O’Connell.

5. Mr O’Connell’s claim may also be considered in terms of a claim for damages for breach of contract.

6. Damages for breach of contract are intended to put a party in the position they would have been in if the contract had been performed.  In the case of the contract to construct a dwelling, the damages are referable to the cost of reinstating the retaining wall and fence to the standard they were in prior to the damage, as if the clearing work had been performed without incident.   

7. There is no evidence before me that the terms of any contract between Mr O’Connell and Merit have not been fulfilled.  In light of my findings that satisfactory repair work has been undertaken and that there is no evidence of cracked footings or the driveway compromising the integrity of the retaining wall, I find that Merit has fulfilled its contract with Mr O’Connell.

8. For these reasons I find that Mr O’Connell has failed in his application against Merit and I order that his application be dismissed.

Mr O’Connell’s claim against Mr Walker

1. The application in this matter was filed on 22 November, 2010. Mr Walker’s counter-application was filed on 23 February, 2011. Accordingly, pursuant to section 98 of the Neighbourhood Disputes Resolution Act 2011, the repealed Dividing Fences Act 1953 continues to apply to the proceeding as an existing proceeding, having been started before the commencement of the Neighbourhood Disputes Resolution Act 2011, on 1 November, 2011.

2. A question arises as to whether the retaining wall in question properly falls within the ambit of the Dividing Fences Act 1953. 

3. It is unnecessary to make any finding on this point as a result of my finding in the domestic building dispute that the retaining wall and fence were satisfactorily repaired, accordingly Mr O’Connell has no claim against Mr Walker for contribution to the cost of replacement of the retaining wall and repair of the fence, in any event.  Further, at the hearing, Mr O’Connell said that he was not seeking any order against Mr O’Connell and thus abandoned his claim for repair or replacement of the balance of the fence and retaining wall not repaired by Merit, made pursuant to his notice to repair, dated 27 October, 2010.

4. Mr O’Connell’s claim against Mr Walker is dismissed.

Mr Walker’s Claim against Mr O’Connell

1. Mr Walker delivered a Notice to Repair Fence to Mr O’Connell on 22 September, 2010 requiring repair of the fence and retaining wall.  Subsequently Merit attended to repairs.  Mr Walker complains that the repairs were inadequate and that the Notice to Repair remains outstanding.

2. Mr Walker seeks orders that Mr O’Connell repair the fence and retaining wall at his own cost and that the applicant repair the hard and soft landscaping on Mr Walker’s side of the fence, caused by leeching of sand through the retaining wall.

3. Additionally, he seeks payment of the sum of $3,000.00 for loss of rental income on the basis that while the damage remained in its initial state, there was an unacceptable risk of collapse and injury and as such he was forced to cancel an approved tenancy for 9 weeks.  Rent was $420.00 per week.

4. In light of my findings that the wall and fence were satisfactorily repaired I do not intend to make any order requiring further work at Mr O’Connell’s cost.  I make no determination as to whether the retaining wall in this case can be the subject of orders pursuant to the Dividing Fences Act 1953.

5. Of course, in the event of deterioration of the retaining wall and fence in the future or loss and damage related to the fence, occurring in the future, the parties will have their rights at law and pursuant to the Neighbourhood Disputes Resolution Act 2011 at that time.

6. As to the claim for loss of rental income, Mr Walker does not set out the legal basis of his claim against Mr O’Connell.  Mr Walker pleads in his counter-application that damage to the fence was caused by Mr O’Connell’s contractors and as a result Mr O’Connell is responsible for the repairs.  It appears Mr Walker is claiming against Mr O’Connell for lost rent based on vicarious liability for the negligence of his contractors and claiming damages for negligence.  Mr Walker’s claim for the cost of repair of damaged landscaping falls within a similar category. 

7. Mr Walker has not led any evidence as to how damage to the retaining wall and fence occurred.  It is common ground between the parties that the damage occurred when the site was being cleared of vegetation.  Beyond that there is no evidence of what negligent act of the excavator caused the damage.  Assuming there was a negligent act, Mr Walker would have to establish that Mr O’Connell authorised the negligent act, to overcome the general rule that a person is not responsible for the negligence of an independent contractor.[i]

8. There is no evidence before the Tribunal that Mr O’Connell directed the excavation contractor as to the manner in which he was to perform his work.

9. I do not consider that the elements of a case in negligence have been addressed or made out in this matter, nor do I do consider that vicarious liability has been established on the part of Mr O’Connell.

10. Accordingly I order that Mr Walker’s counter-application be dismissed.

Orders

1. I order that Mr O’Connell’s application be dismissed.

2. I order that Mr Walker’s counter-application be dismissed.

[i]         Stoneman v Lyons [1975] HCA 59.