O'Kane v Perkins
[2014] QCAT 364
| CITATION: | O’Kane v Perkins [2014] QCAT 364 |
| PARTIES: | Denise O’ Kane (Applicant) |
| v | |
| Rodney Perkins (Respondent) |
| APPLICATION NUMBER: | MCDO77-13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 27 June 2014 |
| HEARD AT: | Pine Rivers |
| DECISION OF: | Member McDonald |
| DELIVERED ON: | 4 July 2014 |
| DELIVERED AT: | Pine Rivers |
| ORDERS MADE: | The order of 21 December 2013 is changed as follows: 1. That a survey of the common boundary occur at the cost of the Applicant. 2. That a new dividing fence be erected on the common boundary between the properties of the parties. 3. The fence is to be constructed in accordance with the quote of Superior Fencing dates 22 October 2013. However, if the applicant uses a contractor other than those quoted for the construction of the dividing fence, the respondent shall be responsible to pay half of the amount of the new quote. 4. The fence construction is arranged by the Applicant. 5. The fence construction be completed within 52 weeks hereof. |
| CATCHWORDS: | Dividing Fences – renewal of earlier decision Queensland Civil and Administrative Tribunal Act Qld 2009 (Qld) s 134 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Denise O’ Kane |
| RESPONDENT: | Rodney Perkins |
REASONS FOR DECISION
On 21 December 2013 the Tribunal made the following order:
1.That a survey of the common boundary occur at the cost of the Applicant.
2.That a new dividing fence be erected on the common boundary between the properties of the parties.
3.That the fence be constructed in accordance with the quotation of Superior Fences dated 22 October 2013.
4.The fence construction is arranged by the Applicant.
5.The fence construction be completed within 12 weeks hereof.
6.The Respondent pays the Applicant the sum of $2922.50 within 14 days of the completion of the fence.
Mrs O’Kane approached the Tribunal for renewal of this decision. She informed the Tribunal that the decision received on 8 January 2014 was being implemented, until Mr Perkins reneged upon removal of his fence and made threats of trespass action. The application for renewal was granted and the Tribunal heard this matter on 27 June 2014. It was accepted that there were problems implementing the order.
The Tribunal is guided by section 134 of the Queensland Civil and Administrative Tribunal Act Qld 2009 (Qld) and may only make a decision that it could have made when the proceeding was originally decided.
Mrs O’ Kane sought to lead fresh evidence about the results of the survey conducted after the previous hearing. She argued that this evidence showed that the retaining wall encroached between 180mm – 440mm upon her land and that the retaining wall would need to be demolished. She submitted that this information supported her original application for the whole of the boundary to be fenced and the retaining wall demolished. However, it was not open to the Tribunal to draw this conclusion in decision of 21 December 2013, and the Tribunal cannot change its order by way of renewal on this aspect of Mrs O’ Kane’s claim.
Mrs O’ Kane further submits that she has been obstructed from attending to the fence due to Mr Perkins reneging on his agreement to demolish the fence on his land. It is not open to the Tribunal to order Mr Perkins to demolish the fence that was accepted at the previous hearing to be on his land.
Mrs O’ Kane further submits that she was unable to complete arrangements for construction of the fence within the timeframe due to threats of trespass, supported by correspondence from Mr Perkins solicitors. She argues that the quotes have therefore expired and need fresh quotes. She referred to a quote date 1 April 2014 submitted with her appeal response documentation and resubmitted at hearing of 27 June 2014.
Mr Perkins submitted that Ms O’Kane had not complied with the order of 21 October 2014 and her application should be dismissed. He continued to argue that the fence on his property was of solid construction and the posts in good condition. He provided supporting evidence by way of a quote from P&K Gibbs dated 24 June 2014 endorsing this view and quoting to remove the existing fence and replace it with a new fence. He continues to hold the view that Ms O’ Kane can build a façade fence along the existing fence.
The Tribunal notes that the quote of 22 October 2013 is no longer a valid quote. It was open to the Tribunal to make orders which require the Respondent to pay half of a reasonable quote for the construction of a dividing fence.
It was also open to the Tribunal to give a longer time for the construction of the fence, and the Tribunal accordingly changes order of 21 December 2013 as follows:
· That a survey of the common boundary occur at the cost of the Applicant.
· That a new dividing fence be erected on the common boundary between the properties of the parties.
· The fence is to be constructed in accordance with the quote of Superior Fencing dates 22 October 2013. However, if the applicant uses a contractor other than those quoted for the construction of the dividing fence, the respondent shall be responsible to pay half of the amount of the new quote.
· The fence construction is arranged by the Applicant.
· The fence construction be completed within 52 weeks hereof.
The Tribunal further reminds the parties of the operation of section 94 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), and extracts it here for the benefit of the parties:
94 Right to enter land for work under this Act
(1) A person may enter land owned by another person (the other owner) if—
(a) the person has agreed with the other owner to carry out fencing work or work relating to trees (the relevant work); or
(b) QCAT has ordered that the relevant work be carried out by the person.
(2) At least 7 days before entering the other owner’s land, the person must give the other owner, and any lessee of the land that the person is aware of, a written notice of the person’s intention to enter the land to carry out the relevant work.
(3) An employee or agent of the person may enter the land if the land if the person complies with subsection (2).
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