Pearce v Simpson - [2025] QCAT 444

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pearce v Simpson & Anor [2025] QCAT 444

PARTIES:

MALCOLM PEARCE

(applicant)

VICKI PEARCE

(applicant)

v

LLOYD SIMPSON

(RESPONDENT)

CINDY PAN

(respondent)

APPLICATION NO/S:

NDR070-24; Q3036-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

5 November 2025

HEARING DATE:

25 September 2025

HEARD AT:

Brisbane

DECISION OF:

Member McLean-Williams

ORDERS:

1.     A new boundary fence and associated retaining wall are to be constructed between Number 5 and Number 7 Alphitonia Crescent Sunnybank Hills, in accordance with an engineering design obtained from a licensed engineer, to be engaged by the Applicants. Obtaining any necessary certification or Council approval is the responsibility of the Applicants.

2.     The associated retaining wall is to be constructed in accordance with the engineering design required by Order (1) above, using concrete sleepers and galvanised steel posts. The boundary fence is to be constructed in Colorbond steel and is to be affixed atop the associated retaining wall, and to a height of 1.8 metres. The Applicants and the Respondents are to each nominate their preferred colour for the new boundary fence from the standard Colorbond range, and are to thereafter attempt to agree between those two colours. In the event of no agreement, the Tribunal mandates that the new fence is to be Colorbond ‘Dune’.

3.     The new boundary fence and associated retaining wall is to be constructed on, or as near to the surveyed boundary as is practically achievable.

4.     The four golden canes and the mock orange hedge situated on the land at Number 5 Alphitonia Crescent Sunnybank Hills are to be removed at the sole expense of the Respondents within 90 days of the date of these orders.

5.     The works described in Order (2) above, are not to commence before the expiration of 91 days after the date of these orders.

6.     The Respondents are to pay the Applicants one half the cost of the boundary survey and survey report dated 26 September 2024, as performed by Hilloc Surveyors, Planners and Development Consultants (‘Hilloc’) within 14 days of the Applicants providing the Respondents with a copy of the Hilloc invoice.

7.     The costs of any engineering design, council certification, as well as the costs for necessary materials and construction/labour costs for the new boundary fence and associated retaining wall (including foundation materials and any designed drainage) now required by Orders (1) and (2) above, are to be borne equally (i.e. 50:50) by the Applicants and the Respondents. The Respondents are to pay the Applicants within 14 days of their being presented with a copy of any costs invoice by the Applicants.

8.     The costs of any necessary preliminary works (including but not limited to any relocation of sheds, pool fences, paving, etc), and post-construction remediation or landscaping costs arising after the erection of the new boundary fence and associated retaining wall as described in Order 2 above, are to be borne on the basis that the Applicants will pay for any such costs arising at Number 7,…

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 Pearce v Simpson

Details

AGLC: Pearce v Simpson [2025] QCAT 444
Case: [2025] QCAT 444
Decision Date: 5 November 2025

CaseChat Overview and Summary

In the matter of Pearce v Simpson, the dispute between neighbouring property owners centred on the construction of a new boundary fence and the associated retaining wall. The matter was heard and determined by the Queensland Civil and Administrative Tribunal. The key issues for determination were the location of the boundary between the two properties, the construction of the new fence, and the costs associated with the new works.

The Tribunal found that the existing fence was insufficient and that a new boundary fence, supported by a retaining wall, was necessary. The parties were unable to agree on the location of the boundary or the design and cost of the new fence. The Tribunal held that the retaining wall was necessary for the boundary fence and ordered the construction of a new fence and retaining wall according to an engineering design. The fence was to be constructed in Colorbond steel, with the colour to be agreed upon by the parties or, if no agreement was reached, to be Colorbond ‘Dune’. The retaining wall was to be constructed using concrete sleepers and galvanised steel posts. The Tribunal also ordered the removal of certain plants and set out the costs to be borne by each party.

In summary, the Tribunal ordered the construction of a new boundary fence and retaining wall, set out the design specifications and costs, and ordered the removal of certain plants. The Applicants were to obtain an engineering design and provide quotes for the works, while the Respondents were to select between the provided quotes. The costs for the boundary survey, preliminary works, and post-construction remediation were to be shared equally between the parties.

Orders

Orders of the court

1. A new boundary fence and associated retaining wall are to be constructed between Number 5 and Number 7 Alphitonia Crescent Sunnybank Hills, in accordance with an engineering design obtained from a licensed engineer, to be engaged by the Applicants. Obtaining any necessary certification or Council approval is the responsibility of the Applicants.

2. The associated retaining wall is to be constructed in accordance with the engineering design required by Order (1) above, using concrete sleepers and galvanised steel posts. The boundary fence is to be constructed in Colorbond steel and is to be affixed atop the associated retaining wall, and to a height of 1.8 metres. The Applicants and the Respondents are to each nominate their preferred colour for the new boundary fence from the standard Colorbond range, and are to thereafter attempt to agree between those two colours. In the event of no agreement, the Tribunal mandates that the new fence is to be Colorbond ‘Dune’.

3. The new boundary fence and associated retaining wall is to be constructed on, or as near to the surveyed boundary as is practically achievable.

4. The four golden canes and the mock orange hedge situated on the land at Number 5 Alphitonia Crescent Sunnybank Hills are to be removed at the sole expense of the Respondents within 90 days of the date of these orders.

5. The works described in Order (2) above, are not to commence before the expiration of 91 days after the date of these orders.

6. The Respondents are to pay the Applicants one half the cost of the boundary survey and survey report dated 26 September 2024, as performed by Hilloc Surveyors, Planners and Development Consultants (‘Hilloc’) within 14 days of the Applicants providing the Respondents with a copy of the Hilloc invoice.

7. The costs of any engineering design, council certification, as well as the costs for necessary materials and construction/labour costs for the new boundary fence and associated retaining wall (including foundation materials and any designed drainage) now required by Orders (1) and (2) above, are to be borne equally (i.e. 50:50) by the Applicants and the Respondents. The Respondents are to pay the Applicants within 14 days of their being presented with a copy of any costs invoice by the Applicants.

8. The costs of any necessary preliminary works (including but not limited to any relocation of sheds, pool fences, paving, etc), and post-construction remediation or landscaping costs arising after the erection of the new boundary fence and associated retaining wall as described in Order 2 above, are to be borne on the basis that the Applicants will pay for any such costs arising at Number 7, and the Respondents will pay for any such costs arising at Number 5.

9. Within six (6) weeks of obtaining an engineering design (Order (1), above) the Applicants will provide the Respondents with two (2) quotes for the necessary works (Order (2), above) and the Respondents are at liberty to select between the provided quotes within 14 days after provision of the quotes. In the event of no response from the Respondent to the provided quotes the Applicants are at liberty to determine which of the two quotes will be accepted.

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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