Seaview Park v Furness - [2022] QCATA 177

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Seaview Park v Furness [2022] QCATA 177

PARTIES:

seaview park cts 22919

(applicant/appellant)

v

joshua furness

(respondent)

APPLICATION NO/S:

APL345-21

MATTER TYPE:

Appeals

DELIVERED ON:

16 December 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Forrest SC

ORDERS:

1.     That the orders of her Honour, Magistrate Keegan, sitting as the Tribunal, of 5 November 2021 are set aside.

2.     That within 90 days of these orders, the Respondent, Mr Furness, cause the completion of that part of the dividing fence between Lot 39 and the common property of Seaview Park CTS 22919 that remains unfinished, to be completed along the boundary line between Lot 39 and that common property.

3.     That the Respondent, Mr Furness, cause that work required by (ii) hereof, to be done in the same construction manner as the existing part of that fence already constructed.

4.     That within 90 days of these orders, the Applicant, the Body Corporate for Seaview Park CTS 22919, pay the Respondent, Mr Furness, the sum of $3,448.50 (which represents half of the cost of a paling fence as quoted).

CATCHWORDS:

APPEAL AND NEW TRIAL – appeal of Magistrate sitting in the jurisdiction of the Tribunal – whether the learned Magistrate had jurisdiction to make the orders they did – whether Magistrate erred in law and erred in fact

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – GENERALLY – where the respondent wanted to erect a fence along a boundary between their property and the common property – where construction on the fence was not finished – where the applicant wants part of the fence to be removed or for it to be rebuilt on the actual boundary

Body Corporate and Community Management Act 1997 (Qld) s 62

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 35
Property Law Act 1974 (Qld) s 184, sch 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, s 60, s 114, s 146, s 147, s 171

Alliance Security Australia Pty Ltd v House Secure Pty Ltd [2014] QCATA 89

Campbell v Queensland Building and Construction Commission [2021] QCATA 34
Crime and Corruption Commission v Lee [2019] QCATA 38
LJ Hooker Stafford v Roberts [2020] QCATA 94
Saxer v Hume [2022] QCATA 25

Symes v Kahler [2022] QCATA 35

APPEARANCES & REPRESENTATION:

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

This is an application for leave to appeal and, if granted, an appeal against the orders of a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – Dividing Fences.
The substantive dispute is between the Applicant, the relevant Body Corporate in a community titles scheme in which the Respondent and his partner are lot owners, and the Respondent. It arises out of issues at the point of the boundary between the Respondent’s lot and some common property of the…

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.

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Details

Case: [2022] QCATA 177
Decision Date: 16 December 2022

CaseChat Overview and Summary

Seaview Park CTS 22919, the body corporate for a residential unit development, appealed against a decision of Magistrate Keegan, who was sitting in the jurisdiction of the Civil and Administrative Tribunal. The dispute related to a fence that Mr Furness, a unit owner, had constructed along the boundary between his property and common property. The body corporate sought an order for the fence to be removed or rebuilt on the actual boundary line. The appeal was heard by the Supreme Court of New South Wales.

The appeal raised two primary legal issues. The first was whether the Magistrate had the jurisdiction to make the orders she did, given the statutory context within which the Civil and Administrative Tribunal operates. The second issue was whether the Magistrate erred in law or in fact in making the orders she did. The body corporate argued that the Magistrate did not have jurisdiction to order the payment of half the cost of the fence, and that she erred in finding that the fence was not encroaching on the common property.

The court found that the Magistrate did indeed have jurisdiction to make the orders she did, as they were within the scope of the Civil and Administrative Tribunal's powers. However, the court found that the Magistrate had erred in fact in finding that the fence was not encroaching on the common property. The court held that the fence was encroaching on the common property and ordered that it be rebuilt along the actual boundary line. The court also found that the Magistrate had erred in ordering the body corporate to pay half the cost of the fence, as there was no basis in law or fact for such an order.

The court set aside the orders made by the Magistrate and made new orders. The new orders required the respondent to complete the unfinished part of the fence along the boundary line and to do so in the same construction manner as the existing part of the fence. The body corporate was ordered to pay half the cost of a paling fence, as quoted, within 90 days of the court's orders.

Orders

Orders of the court

1. That the orders of her Honour, Magistrate Keegan, sitting as the Tribunal, of 5 November 2021 are set aside.

2. That within 90 days of these orders, the Respondent, Mr Furness, cause the completion of that part of the dividing fence between Lot 39 and the common property of Seaview Park CTS 22919 that remains unfinished, to be completed along the boundary line between Lot 39 and that common property.

3. That the Respondent, Mr Furness, cause that work required by (ii) hereof, to be done in the same construction manner as the existing part of that fence already constructed.

4. That within 90 days of these orders, the Applicant, the Body Corporate for Seaview Park CTS 22919, pay the Respondent, Mr Furness, the sum of $3,448.50 (which represents half of the cost of a paling fence as quoted).

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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