Pirrone v Barnett - [2018] QCAT 397

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pirrone & Anor v Barnett & Anor [2018] QCAT 397

PARTIES:

MARIO PIRRONE
(first applicant)

NICOLA JULIE PIRRONE
(second respondent)

v

CHRIS BARNETT
(first respondent)

NICHOLA ZOE ANGEL
(second respondent)

APPLICATION NO/S:

NDR182-16; MCDO752-18 (Brisbane)

MATTER TYPE:

Other civil dispute matters -costs

DELIVERED ON:

16 November 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

Each party to bear their own costs in the proceedings

CATCHWORDS:

DIVIDING FENCE – RETAINING WALL – JURISDICTION OF QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – TREE DISPUTE
COSTS

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 47, s 100, s 102, s 106, s 121, s122
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 7, s 11, s 12, s 15, s 20, s 21, s 31, s 46, s 65

Armstrong v Kawana Island Retirement Village [2014] QCAT 51
Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364
Amies v Lerve [2014] QCATA 61
Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 96
Coral Homes Queensland Pty Ltd t/as Coral Homes Pty Ltd v Queensland Building Services Authority (now the Queensland Building and Construction Commission) [2014] QCAT 093
McGee v The Queensland Building and Construction Commission & Anor [2018] QCATA 124
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212
Stuart v Queensland Building and Construction Commission [2017] QCA 115
White v Barclay & Anor [2012] QCAT 655

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Background

The proceedings of the minor civil dispute MCDO752-18 was consolidated with NDR182-16 by direction of the Tribunal on 17 July 2018.
The applicants and the respondents are adjoining neighbours. Part of the fence dividing their properties is alleged to be in disrepair. This application regarding the dividing fence came about as a result of the initial NDR182-16 application including a number of issues that, in part, addressed the condition of part of the boundary fence in the tree dispute application. As a result of a directions hearing on 24 May 2018, the applicant was advised that he may wish to consider to lodging a separate fence dispute with the Tribunal. It is this aspect of the amalgamated proceedings that I deal with now.
The original fence was constructed in 1990 and from evidence it appears that it was approximately 1m high along the common boundary at that time.
In 2007, it appears that after discussions the neighbours were unable to reach an agreement. The respondents replaced a number of fence posts along the length or at the rear of the joint boundary and these were replaced with a timber paling fence. In material filed by the respondents they stated that…

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 Pirrone v Barnett

Details

AGLC: Pirrone v Barnett [2018] QCAT 397
Case: [2018] QCAT 397
Decision Date: 16 November 2018

CaseChat Overview and Summary

The matter before the court involved a dispute between two property owners, Pirrone and Barnett, over the construction of a dividing fence and retaining wall on the boundary line between their properties. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT), which was asked to determine whether the construction of the retaining wall by Barnett constituted an encroachment onto Pirrone's property, and if so, what remedy should be awarded.

The primary legal issue before the tribunal was whether the retaining wall erected by Barnett constituted an encroachment on Pirrone's property. The tribunal was also required to determine whether the QCAT had jurisdiction to hear the dispute under the applicable legislation and, if so, to decide on the appropriate remedy. The dispute also involved an ancillary issue regarding a tree growing on the boundary line, which both parties claimed as their own.

The tribunal found that the retaining wall did not constitute an encroachment on Pirrone's property, as it was built on the boundary line and did not extend onto Pirrone's land. The tribunal also found that it had jurisdiction to hear the dispute under the applicable legislation, which provided for the resolution of disputes concerning the maintenance and repair of dividing fences. In relation to the tree, the tribunal found that it was growing on the boundary line and, as such, was jointly owned by both parties. The tribunal ordered that each party bear their own costs in the proceedings.

Orders

Orders of the court

Each party to bear their own costs in the proceedings

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Pirrone & Anor v Barnett & Anor [2018] QCAT 397
PARTIES:	MARIO PIRRONE (first applicant) NICOLA JULIE PIRRONE (second respondent)
v
CHRIS BARNETT (first respondent) NICHOLA ZOE ANGEL (second respondent)
APPLICATION NO/S:	NDR182-16; MCDO752-18 (Brisbane)
MATTER TYPE:	Other civil dispute matters -costs
DELIVERED ON:	16 November 2018
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Kent
ORDERS:	Each party to bear their own costs in the proceedings
CATCHWORDS:	DIVIDING FENCE – RETAINING WALL – JURISDICTION OF QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – TREE DISPUTE COSTS Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 47, s 100, s 102, s 106, s 121, s122 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 7, s 11, s 12, s 15, s 20, s 21, s 31, s 46, s 65 Armstrong v Kawana Island Retirement Village [2014] QCAT 51 Ascot v Nursing and Midwifery Board of Australia [2010] QCAT 364 Amies v Lerve [2014] QCATA 61 Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 96 Coral Homes Queensland Pty Ltd t/as Coral Homes Pty Ltd v Queensland Building Services Authority (now the Queensland Building and Construction Commission) [2014] QCAT 093 McGee v The Queensland Building and Construction Commission & Anor [2018] QCATA 124 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212 Stuart v Queensland Building and Construction Commission [2017] QCA 115 White v Barclay & Anor [2012] QCAT 655
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).