Petrie v Peters
[2013] QCAT 641
•22 November 2013
| CITATION: | Petrie v Peters [2013] QCAT 641 |
| PARTIES: | Alexander Petrie (Applicant) |
| v | |
| Javed Peters (Respondent) |
| APPLICATION NUMBER: | MCD157/13 |
| MATTER TYPE: | Minor civil dispute matters |
| HEARING DATE: | 11 November 2013 |
| HEARD AT: | Holland Park |
| DECISION OF: | Member Favell |
| DELIVERED ON: | 22 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application is dismissed. |
| CATCHWORDS: | Dividing fence – application for contribution – no notice given – no agreement – fence constructed – whether jurisdiction in QCAT to make order Building Act 1975 ss 20, 35, 231B |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Alexander Petrie |
| RESPONDENT: | Javed Peters |
REASONS FOR DECISION
Alexander Petrie, the applicant, and Javed Peters are neighbours.
Mr Petrie claims there is an amount owing to him in the sum of $913. He says that that is a half share of a dividing fence now built between the properties owned by the parties.
Mr Petrie told me that he had received a quote to replace the boundary fence between two adjoining properties. He took photocopies of the quote to his two neighbours. One stated that it was ok. The other stated he would think about it.
One week after this meeting he had the fence replaced. The fence was full of termites and falling down.
He said,
The first neighbours came around and had a look at it and paid their share $135. I have called on the neighbours three times. On one occasion they would not even open the door. The third time I was informed that the fence was not the same as it was high and that their solicitor had told them that they did not have to pay a cent. The fence is exactly the same height as the original one, 1.4 metres. I paid $170 to hire a skip to take the old fence away. I didn’t ask them to contribute.
A quotation number 1208 from Westproud Outdoors shows that the cost of a 1.4 high 18-400m long treated pine rails and palings fence was $1,826. That is the quote of the now built dividing fence between the parties’ properties.
The respondent opposes the application and asks to the Tribunal dismiss the application and that the applicant pay the respondent’s costs of and incidental to the application.
The respondents reasons for seeking such an order were expressed as follows:
There was no (express or implied) agreement either verbally or in writing and no authorisation was given for the construction of the dividing fence and no order from QCAT or a court compel such. The applicant did not comply with and has breached the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. The application is frivolous, vexatious and an abuse of process. Part of the dividing fence forms part of the boundary to a regulated pool (which includes the pool and fence) under section 231B of the Building Act 1975, if the respondents are found liable (which liability is denied) in this application liability is limited to the dividing fence cost (or a portion thereof) which does not bound the regulated pool. The fence is not a sufficient dividing fence. The respondent is not liable pursuant to section 20 of the Act and it cannot be enforced. It was not urgent fencing work. No notice to contribute or notice to fence was served on the respondent pursuant to the Act. No application was made to QCAT to resolve the dispute and there was no invitation to attend a mediation. Pursuant to section 35 of the Act QCAT is limited in this application only to making an order to contribution. For the reasons stated above the respondent is not liable for any contribution and QCAT must dismiss the application.
At the hearing it was apparent that no notice was given to Mr Peters. A copy of the quotation was provided.
It was also apparent that part of the fence which is shown in the photographs which have been provided was part of a pool fence.
It seems that the previous dividing fence was in bad condition. However, galvanised round posts which were used to set in to a retaining wall were reused in the new fencing.
Section 30 of the Neighbourhood Disputes Resolution Act 2011 encourages adjoining owners to attempt to resolve issues about fencing work to avoid a dispute arising.
Section 40 of the act provides for a process if the adjoining owners do not agree on the position of the common boundary. Section 16 sets out the meaning of “fencing work” which can include construction of a new dividing fence, repair of an existing dividing fence, replacement of a dividing fence or modification of a dividing fence, surveying or preparation of land. Section 13(3) of the Act sets out prescribed material for a dividing fence.
If it is proposed that the cost of fencing work be shared otherwise than in equal proportions the proposed proportions must be specified (section 34(4)).
Section 31(6) of the Act provides that if in one month after the notice was given the adjoining owners do not agree about the proposed fencing work or the contributions to the cost of the proposed fencing work then either one, may, within two months after the notice is given, apply to the Queensland Civil and Administrative Tribunal for an order about carrying out fencing work.[1]
[1] Neighbourhood Disputes Resolution Act 2011 s 35.
Section 31 of the Act deals with notices to contribute for fencing work. It allows the owner to require the adjoining owner to contribute under the Act to the carrying out of fencing work for a dividing fence by giving notice to the adjoining owner. The notice must be in approved form and state a description of the land on which the fencing work is proposed to be carried out and if the fencing work is to replace the dividing fence the line on which it is proposed to construct or replace the fence: the type of fencing work to be carried out and the estimated cost of the fencing work to be carried out including the cost of labour and materials. The notice must be accompanied by a copy of at least one written quotation stating the estimated cost of the fencing work to be carried out. No such notice was given. If within one month after the notice is given the adjoining owners have not agreed about the proposed fencing work to be carried out and their contributions to the proposed fencing work either adjoining owner may within two months after the notice is given apply to QCAT for an order under section 35.
Section 35 sets out the orders that QCAT may make.
Section 33 of the act provides for the jurisdiction of QCAT and in particular it provides that QCAT has jurisdiction to hear and decide any matter arising under chapter 2 of the Act.
Section 9 provides that Parts 3 to 6 of the Act do not apply in relation to a fence or part of a fence that is a barrier of a regulated pool. In other words, sections 19 to 40 do not apply in respect of that part of the fence that is a barrier to the pool.
Because the requirements of section 31 were not complied with and there was no notice given it follows that, in the circumstances here, QCAT does not have the jurisdiction to make the order sought.
Section 30(3) allowed an owner to apply to QCAT for resolution of a dispute if the dispute arises about carrying out fencing work for which a notice to contribute has been given. If no notice to contribute was given then the application cannot be made.
In the circumstances, the appropriate order is that the application is dismissed.
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