Smethurst v O'Kelly

[2016] QCAT 436

CITATION:

Smethurst & Anor v O’Kelly [2016] QCAT 436

PARTIES:

Paul Smethurst
Ann Robinson
(Applicants)

v

Rauri O’Kelly

(Respondent)

APPLICATION NUMBER:

MCDO895-16

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

26 September 2016

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

14 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   The application is dismissed for lack of jurisdiction.

CATCHWORDS:

Dividing fence application – jurisdiction – 3m high retaining wall – natural ground level – cut or excavate – backfill – structural inadequacy of retaining wall – encroachment of retaining wall – land support issues and loss of enjoyment of land

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 11, s 35(1)(f)

Explanatory Notes, Neighbourhood Dispute Resolution Bill 2010 (Qld)
Queensland Law Reform Commission, Review of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) Discussion Paper (June 2015)

Jones v Budd [2015] QCATA 117

APPEARANCES:

APPLICANT:

Paul Smethurst

RESPONDENT:

Rauri O’Kelly

REASONS FOR DECISION

1. On 12 May 2016, Paul Smethurst and Ann Robinson filed an application for Minor Civil Dispute – Dividing Fences. They sought orders about: the line on which fencing work was to be carried out; the fencing work to be done; the kind of material to be used in the fencing work; the amount the parties were to contribute or pay for fencing work; which parts of the dividing fence were to be constructed or repaired; and finally, when fencing work was to be done. Appended to the application was a notice to contribute for fencing work and a quote from a Lifestyle Fencing for $2,887.50.

2. Mr Smethurst and Ms Robinson reside at 210 Kitchener Road, Kedron (formerly 389 Webster Road, Stafford Heights) with the respondent to the application, Rauri O’Kelly being the owner of 387 Webster Road, Stafford Heights.

3. Mr Smethurst and Ms Robinson’s land is located on the corner of Webster Road and Kitchener Road, with Mr O’Kelly’s land abutting and therefore having a common boundary with the southern side of Mr Smethurst and Ms Robinson’s land. The contour of the land generally is that it falls or slopes away north to south, with a retaining wall of sorts presently serving to divide the land of each of the parties. There is no fence as such.

4. Mr Smethurst and Ms Robinson stated that when, and shortly after they purchased, 210 Kitchener Road in July 2015, they became aware of the irregularity of the retaining wall and the deviation from what was apparently the true common boundary line. They stated they approached Mr O’Kelly about this in August 2015 and that he replied with an engineer’s report from Emcon dated 21 January 2016.

5. That report stated:

   The retaining wall is approximately 20m long with a maximum height of 3m. The wall is of a generally poor quality construction and can be described as a mass gravity type wall, which basically relies on the mass of concrete and rock to provide stability against overturning and sliding. One section of the wall has…