Petrie v Peters - [2013] QCAT 641

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
Neighbourhood Dispute Resolution Act 2011 ss 13(3), 16, 30, 30(3), 31, 31(6), 34(4), 35, 40

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…

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 Petrie v Peters

Details

AGLC: Petrie v Peters [2013] QCAT 641
Case: [2013] QCAT 641
Decision Date: 22 November 2013

CaseChat Overview and Summary

The case of Petrie v Peters involved a dispute between neighbours regarding the construction of a dividing fence. Petrie sought a contribution from Peters towards the cost of the fence, which had already been built. The application was brought before the Queensland Civil and Administrative Tribunal (QCAT). The core issue was whether QCAT had the jurisdiction to make an order for Peters to contribute to the cost of the fence, given that no prior notice was provided to Peters and no agreement was in place for such a contribution.

The central legal question before QCAT was whether the tribunal had the authority to compel Peters to contribute to the cost of the fence. The tribunal needed to determine if the lack of prior notice and absence of an agreement between the parties affected its jurisdiction to make such an order. The tribunal examined the relevant statutory provisions under the Building and Construction Commission Act and considered whether these provisions provided a basis for the order sought by Petrie.

After reviewing the applicable legislation and the circumstances of the case, the tribunal concluded that it did not have the jurisdiction to compel Peters to contribute to the cost of the fence. The tribunal found that the statutory provisions did not permit an order for contribution when no prior notice had been given and no agreement was in place. Consequently, the tribunal dismissed Petrie's application. The tribunal's reasoning was based on the statutory requirements and the specific circumstances of the case, leading to the conclusion that it could not make the order sought by Petrie.

Orders

Orders of the court

Application is dismissed.

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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