RTM Pty Ltd v Forrester
[2013] QCAT 381
| CITATION: | RTM Pty Ltd v Forrester [2013] QCAT 381 |
| PARTIES: | RTM Pty Ltd (Applicant) |
| v | |
| Ms Angela Jane Forrester and Mr Peter Leslie Forrester (Respondents) |
| APPLICATION NUMBER: | MCD2180-12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 4 June 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul Favell, Member |
| DELIVERED ON: | 4 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS: | MINOR CIVIL DISPUTE - Dividing Fence - Application for contribution - Notice given - no agreement - fence constructed - application made out of time. Neighbourhood Disputes Resolution Act 2011 ss 13,16, 30, 31, 35 and 40. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Lindsay Ray Jammieson (director of RTM Pty Ltd) |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
The applicant and the respondents are neighbours. The applicant owns 7 Oak Street, Russell Island and the respondents own 9 Oak Street, Russell Island. The applicant seeks an order that the parties have to contribute to or pay for fencing work for a fence between their properties. They also seek an order for the payment of a filing fee for the application.
Further, the applicant seeks an order that a specific fence is a dividing fence.
By a notice to contribute for fencing work dated 17 May 2012 the applicant gave notice to the respondents that it proposed that fencing work be carried out in respect of the adjoining lands at 7 and 9 Oak Street, Russell Island. It was proposed that the fencing work be carried out on the common boundary of the adjoining lands and that the fencing work would consist of timber and be constructed of timber palings, posts and rails.
The applicant estimated the cost of the fencing work to be $2,024.00 and proposed that the cost of the fence be shared equally.
The applicant told me that the fence has been erected and it was so erected in December 2012.
With the application the applicant provided copies of the Dividing Fences Act 1953 (Qld) particularly sections 8, 9 and10. The act which was the appropriate act at the relevant time, however, was not the Dividing Fences Act but rather the Neighbourhood Disputes Resolution Act 2011 (Qld).
Section 30 of that Act 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 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.[1]
[1] Neighbourhood Disputes Resolution Act 2011 (Qld) s 31(4).
Section 31(6) of the Act provides that if in 1 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.[2]
[2] Ibid s 35.
Here, an appropriate notice was given pursuant to section 31 of the Act on 17 May 2012. The application has been commenced on 3 August 2012, outside of the two month period provided for by section 31(6) of the Act.
Further, section 31(7) provides,
Until the adjoining owners have agreed to the proposed fencing work to be carried out and their contributions to the proposed fencing work, neither owner may carry out fencing work, or arrange to have fencing work carried out for a dividing fence other than for urgent fencing work.
I am satisfied that a notice was given as required by the Act. I am not satisfied that there is any agreement about the fencing work or the contributions. I have not been shown any photographs or any lay out of the relevant properties. Nor have I been shown any survey showing where the dividing line is. I would have, however, been prepared to act on what I was told by Mr Jammieson, a director of the applicant as to the items which the Tribunal would normally expect to be provided in support of the application. Here, however, the application has not been commenced within two months after the notice was given and the work has been done in contravention of section 31(7).
In the circumstances, the Tribunal is not empowered to make the order as sought.
The order is the application is dismissed.
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