Pierce v Moderate - [2014] QCAT 438

CITATION:

Pierce v Moderate [2014] QCAT 438

PARTIES:	Michael David Pierce (Applicant/Appellant)
v
John Stanley Moderate (Respondent)

APPLICATION NUMBER:

MCDO202/14; MCDO97/14

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

21 February 2014; 21 March 2014; 28 April 2014

HEARD AT:

Southport

DECISION OF:

Adjudicator Trueman

DELIVERED ON:

13 August 2014

DELIVERED AT:

Southport

ORDERS MADE:

1. THAT claim 202/14 is dismissed.

2. THAT in relation to claim 97/14 the dividing fence works must be carried out on that part of the dividing fence that is identified as the non compliant pool barrier between the properties of the parties.

3. THAT the fencing works be performed in accordance with the quotation dated 9 February 2014 by Smart Stone Group (a copy of which is attached to this Order).

4. THAT the fencing works are to be arranged by Mr Moderate.

5. THAT the fencing works must be completed within twelve weeks of the date hereof.

6. THAT Mr Moderate must at least 14 days before entering upon Mr Pierce’s land, give him or any lessee, notice of the commencement of the proposed fencing works.

7. THAT Mr Pierce must pay to Mr Moderate the sum of $1,226.50 (GST inclusive) within seven days of the fencing works being completed.

8. THAT each of the parties will be responsible for rendering and painting the fencing works on their side of their property, at their own cost, with such colour of the new fence works to match the existing paint colour of the current dividing fence.

9. THAT should Mr Moderate wish to undertake more extensive fencing works that are in compliance with the approval given to him on 4 February 2014 by the Sanctuary Cove Principal Body Corporate GTP 202 Architectural Review Committee then Mr Moderate may be entitled to do so but the additional cost thereof over and above the amount referred to in order 7 herein shall be borne entirely by Mr Moderate.

CATCHWORDS:

Minor Civil Dispute – dividing fences – adjoining properties at Sanctuary Cove – height of fence – whether any effect of Sanctuary Cove Resort Act 1985 – where competing applications by neighbours – where orders sought to prevent neighbour further demolishing dividing fence and to rectify part damaged – counter claim for order to modify and extend dividing fence to comply with fence forming pool barrier – where competing claims filed in different registries – where matters consolidated and heard at Southport – issues to be determined is how height of pool safety fence is determined – whether neighbour should be required to pay for dividing fence forming pool safety barrier if neighbour’s fence does not comply

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011
Building Act 1975

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Michael Pierce (by telephone)

RESPONDENT:

Mr John Moderate in person

REASONS FOR DECISION

The parties are neighbours to properties they own in Marine Drive East in Sanctuary Cove in Queensland. The properties are both prestigious waterfront properties located within a gated…

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 Pierce v Moderate

Details

AGLC: Pierce v Moderate [2014] QCAT 438
Case: [2014] QCAT 438
Decision Date: 13 August 2014

CaseChat Overview and Summary

The case of Pierce v Moderate, heard at the Southport Magistrates Court, involved a dispute between neighbours over the height and safety of a dividing fence and pool barrier at Sanctuary Cove. Mr Moderate sought an order for Mr Pierce to rectify part of the fence that had been damaged, while Mr Pierce sought to prevent Mr Moderate from further demolishing the dividing fence and claimed that the pool barrier was not compliant with safety regulations. Both parties filed competing claims in different registries, which were later consolidated and heard together.

The central legal issues before the court were the determination of the appropriate height of the pool safety fence and whether Mr Moderate should be required to pay for the dividing fence forming the pool safety barrier if Mr Pierce's fence did not comply with regulations. The court considered evidence from both parties, including detailed photos, plans, quotations, letters, architectural drawings, and a pool safety inspection report. The report indicated that the barrier height of the lower rendered section of the fence was less than the 1200mm minimum required by pool safety standards and suggested increasing the height to comply.

The court ruled that the dividing fence works must be carried out on the non-compliant pool barrier between the parties' properties, in accordance with a specific quotation from Smart Stone Group. Mr Moderate was to arrange the works, which had to be completed within twelve weeks. Mr Moderate was required to give Mr Pierce notice before entering his land to perform the works. Additionally, Mr Pierce was to pay Mr Moderate a specified amount once the works were completed, and both parties were responsible for rendering and painting their respective sides of the fence. The court also noted that if Mr Moderate wished to undertake more extensive works, he could do so, but the additional costs would be borne by him alone.

Orders

Orders of the court

1. THAT claim 202/14 is dismissed.

3. THAT the fencing works be performed in accordance with the quotation dated 9 February 2014 by Smart Stone Group (a copy of which is attached to this Order).

4. THAT the fencing works are to be arranged by Mr Moderate.

5. THAT the fencing works must be completed within twelve weeks of the date hereof.

6. THAT Mr Moderate must at least 14 days before entering upon Mr Pierce’s land, give him or any lessee, notice of the commencement of the proposed fencing works.

7. THAT Mr Pierce must pay to Mr Moderate the sum of $1,226.50 (GST inclusive) within seven days of the fencing works being completed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Pierce said that if the pool fence did not comply on Mr Moderate’s side and if it was lower, that this was directly due to the fact that he had built up his side of the fence, and had disrupted measurements. MR MODERATE’S EVIDENCE Mr Moderate provided a bundle of documents and evidence[3] to the tribunal to support his claim. The bundle contained detailed photos, plans, quotations, letters from the Sanctuary Cove Body Corporate , invoices, a copy of the Sanctuary Cove By-laws and regulations (relevant to pools and fences), architectural drawings showing the dividing fence and pool barrier both current, and the proposed fence works he intended to undertake. The evidence was extremely useful to the tribunal in determining the matter.[3]Exhibit 1. Mr Moderate stated that the current problem of the dividing fence and that part that included the pool barrier not complying with the relevant safety regulations was only brought to his attention by Mr Pierce’s pool inspector who told him that the fence was too low and did not comply. Mr Moderate said that as a result of this conversation with the pool inspector he was concerned that if the pool fence was not safe and did not comply he was liable if something happened. He said he was concerned that the fence was constructed in approximately 1998 and the original 1.365 meter of fence was deemed illegal as it was not 1200mm high on his side. He said that the adjoining section of block wall that abuts up to the pool fence is also not 1200mm above ground and is therefore not compliant and not safe. Mr Moderate said that he had spoken to a woman, who he now thinks was Mr Pierce’s mother, who was at the property. He said he thought that she had given approval for him to build the new wall and make the pool safe and that is why he started the fence works. He said once he was contacted by Mr Pierce and advised permission was not given he stopped work and later reinstalled the fence and put the fence back to the original condition, until a determination could be made by the tribunal. Mr Moderate said that he arranged for a pool safety inspection by All Clear Pool Safety Inspections. He said that the report[4] states that the pool barrier does not comply with the current pool safety regulations. The report refers to the section of pool barrier between 7120 and 7122 Marine Drive east. The report found ’that the barrier height of the lower rendered section of the fence is less than the 1200mm minimum required by the pool safety standards’. The report included a photo depicting the relevant section and the method of measurement. The report suggested that to comply with the pool safety regulations that would be to ’increase the height to a minimum of 1200mm’. [4]All Clear Pool Safety Inspections report dated 26 February 2014. Mr Moderate said that the report also stated that the vines growing on the boundary fence posed a safety issue in that the vine offered footholds in the non-climbable zone which breached the regulations.[5] He said he had now removed the vines after getting the report and that this was no longer an issue. [5]AS 1926.1-2007 Australian Standard for Swimming Pool Safety – Part 1 - Safety Barriers for Swimming Pools.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.