Ramsay v Earl

Case [2025] QCATA 29

QUEENSLAND CIVIL AND
  ADMINISTRATIVE TRIBUNAL

CITATION:

Ramsay v Earl [2025] QCATA 29

PARTIES:
KAREN RAMSAY

(applicant)

v
LLOYD THOMAS EARL

(first respondent)

SUE ANN EARL

(second respondent)

APPLICATION NO/S:

APL129-24

ORIGINATING APPLICATION NO/S:

Q956 of 2024

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

12 March 2025

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

NEIGNEIGHBOURHOOD DISPUTE – DIVIDING FENCE – replacement of fence and retaining wall – where distinction between fence and wall considered – whether costs of replacing retaining wall should be apportioned – whether benefit of wall to disputing landowners respectively is decisive – whether cost of retaining wall sole responsibility of applicant – where status of fact-finding by primary decision maker considered – where difference between retrial and application for leave to appeal considered

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 11, s 21, s 33, s 35, Schedule

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 32, s 142

Abalos v Australian Postal Commission (1990) 171 CLR 167
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FCR 132
Chae v Chung [2013] QCATA 208
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
JM v QFG and GK [1998] QCA 228
Neate v Zillotti [2022] QCATA 168
Robinson v Corr [2011] QCATA 302
Strbak v Newton [1989] NSWCA 202
The Pot Man Pty Ltd v Reaoch [2011] QCATA 318
White v Steer [2018] QCATA 30
Wong v Arthur [2020] QCAT 89

Zacaropoulos v Davison [2022] QCAT 257

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Introduction

  1. The respective parties are proprietors of adjoining residential lots in Coventry Place, Wishart, Brisbane.

  2. In or about June 2023, the respondents to the present application, Mr and Mrs Earl (‘Earl’), wished to replace the dividing fence between their property and that of the present applicant, Mrs Karen Ramsay (‘Ramsay’).

  3. It was agreed that the existing timber fence be replaced by ‘colorbond’ sheeting standing on a new concrete retaining wall in place of old timber sleepers that previously served that purpose. Apportionment of liability for the costs of removing the old fence and erection of the new were not seriously contested.[1]

    [1]           Transcript of hearing 9 April 2024 (‘T’) page 18 lines 4-11.

    Liability for retaining wall

  4. The real bone of contention is liability for the new retaining wall. The adjudicator, relying on authorities considered below, ordered that ‘[Ramsay] must pay the entire cost of the removal and construction of the retaining wall.’[2] The adjudicator observed:[3]

    The photographic evidence, and the submissions that have been made by both parties, can really only be interpreted as providing that the necessity for the retaining wall is to retain land on the respondent’s side of…

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Ramsay v Earl [2025] QCATA 29
Case
[2025] QCATA 29
Decision Date

CaseChat Overview and Summary

The case of Ramsay v Earl involved a dispute between neighbouring landowners regarding the replacement of a dividing fence and retaining wall. The matter was heard in the Australian court of appeal. The primary issue before the court was whether the costs of replacing the retaining wall should be apportioned between the parties and, if so, how. A further question was whether the benefit of the retaining wall to the respective landowners was a decisive factor in determining the apportionment of costs. Additionally, the court considered whether the cost of the retaining wall should be the sole responsibility of the applicant.

The court examined the findings of the primary decision-maker and determined that there was no appellable error of law. The tribunal had found that the benefit of the retaining wall flowed solely to Ramsay and had applied the appropriate legal principles to that situation. The court disapproved of hyper-critical scrutiny of the tribunal's findings, emphasising that such matters of fact and credit were within the province of the primary decision-maker. The court also noted that the application for leave to appeal was not equivalent to a retrial, and therefore, the standard of review was limited. Ultimately, the court found no glaring improbability in the tribunal's fact-finding and dismissed the application for leave to appeal.

The orders of the court were that the application for leave to appeal was dismissed, with no further appeal permitted on the matter. The court's decision reinforces the principle that findings of fact by primary decision-makers are to be given deference, unless there is a clear error or glaring improbability. In this case, the court was satisfied that the tribunal's findings were sound and that no further appeal was warranted.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As for reasons for the decision, it suffices that the tribunal found as a fact that the benefit of the retaining wall flowed to Ramsay alone, and proceeded to explain and apply appropriate authority to that situation. Hyper-critical scrutiny of minor or overloaded tribunals is disapproved by courts of appeal.[21][21] Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FCR 132 at 137, Strbak v Newton [1989] NSWCA 202 at page 7.Conclusion The subject decision turns upon matters of fact and credit that are the province of the primary decision maker. I discern no appellable error of law and nothing that could be reasonably described as a ‘glaring improbability’[22] error in fact-finding. The application for leave to appeal is dismissed.[22] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179.

Ratio Decidendi

Legal Principle Established

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