Starbuck v Wensley
[2017] QCAT 470
•8 November 2017
CITATION: | Starbuck v Wensley [2017] QCAT 470 |
PARTIES: | Joel Starbuck |
| v | |
| Gaynor Wensley (Respondent) | |
APPLICATION NUMBER: | MCDO257/17 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Carmel McMahon, Justice of the Peace |
DELIVERED ON: | 8 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application to renew the decision of 14 June 2017 is granted as the specified fencing material (cypress pine) is no longer available at a reasonable cost (s 133(1)(a) Queensland Civil and Administrative Tribunal Act 2009). 2. Substitution of the following order for order no.2 in the decision of 14 June 2017: “The fence is to be constructed in accordance with the quotation by Norman’s Fencing quotation no. 7681 dated 27 November 2017 totalling $3,960.00 for a treated timber fence”. 3. Respondent’s contribution is to remain at $1,230.00 payable within 14 days of the completion of the fence. |
CATCHWORDS: | REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – where adjoining properties are in Bardon – where tribunal at hearing ordered cypress pine fencing – where cost of cypress pine has become excessive – where applicant seeks amendment of material to treated timber – where respondent objects and seeks a fresh decision – where rights and contributions of both parties considered – where tribunal renewed the decision substituting treated timber for cypress pine – where respondent seeks reasons for that decision Neighbourhood Disputes (Dividing Fences and Trees) Act 2001 (Qld), s 21 |
This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
The application to “correct” a final decision.
Mr Joel Starbuck lodged an application on Form 43 with the tribunal on
5 October 2017 for a reopening, correction, renewal or amendment of a final decision following a hearing on 14 June 2017. The decision related to a fencing dispute between Mr Starbuck and an adjoining neighbour, Ms Gaynor Wensley. Mr Starbuck had sought treated timber fencing and Ms Wensley had sought chain wire; Ms Wensley preferred cypress pine to treated timber. The tribunal specified cypress pine in its order after a hearing with both parties appearing before it.
Mr Starbuck states he has brought this second application to “correct” that final decision of 14 June. He states that the reason for seeking a correction is that cypress pine fencing as specified has become difficult to obtain and too expensive to use, thus he seeks the substitution of treated timber in the order.
His application to reopen, correct, renew or amend a final decision was considered on the papers by the tribunal on 8 November 2017, both parties having provided submissions. Following consideration of these, the tribunal made an order for an amendment of the order of 14 June 2017 substituting treated timber for cypress pine but maintaining the same limit of the financial contribution by the respondent. The decision to amend was made on the papers under s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT ACT) and under the provisions of s 133(1)(a) of the Act as it was not reasonably possible for the tribunal’s original decision to be complied with, given the unavailability of cypress pine except at excessive prices.
The respondent now seeks the tribunal’s reasons for this decision.
History of this application for minor civil dispute – dividing fences.
Mr Joel Starbuck lodged an application with the tribunal for a minor civil dispute – dividing fences on 13 February 2017. He provided two fencing quotes, one from Brian Brett Fencing dated 19 April 2017 for cypress pine fencing in the sum of $3,390.00, and the second from Norman’s Fencing dated 27 November 2017 for a treated timber fence in the sum of $3,960.00. The tribunal accepted the cheaper quotation from Brian Brett Fencing.
Mr Starbuck had complied with the required procedures issuing a Notice to Contribute for Fencing Work Form 2 to Ms Wensley on 12 December 2016 and obtained two quotes; Ms Wensley responded to the applicant on
6 January 2017 stating she did not agree with any changes to the existing fence between the properties.
Since lodgement of the application on 13 February 2017, the respondent has raised a number of issues including whether there was effective service of the application, an incorrect date of the Agreement to Contribute to Fencing Work form, and allegations that the applicant has deliberately or negligently damaged parts of the existing chain wire fence and provided false and misleading information to the tribunal.
Following the usual process to resolve such a dispute, the tribunal set down mediation of the dispute for 14 March 2017. The respondent then sought to bypass mediation, and made an interim application for an order to have the matter dismissed. A senior member of the tribunal refused both these applications in an order dated 9 March 2017.
Other issues which are not relevant to this current application included a dispute about the boundary line, and the removal of foliage along the existing fence and cost of that removal.
Mediation took place on 14 March 2017 with both parties attending however it was unsuccessful.
The matter then proceeded to a hearing on 14 June 2017 with both parties present and making submissions. The respondent’s concerns were based on cost, upkeep, the type of fences common in the neighbourhood and also the chemicals used in treated timber. Primarily, she wanted a chain wire fence.
The tribunal made specific fencing orders including relevantly order no. 2 which specified cypress pine fencing as the fence material. The first tribunal had the benefit of hearing oral evidence from both parties; it appears from the evidence on file that its decision for cypress pine may have been to construct a compromise between the disputing parties.
It also appears that the tribunal gave careful and sympathetic consideration to at least some of the respondent’s submissions as it ordered that her contribution to the fence would be capped at $1,230.00 making the remainder of the total of $3,960.00 payable by the applicant; the usual presumption is that the parties bear the financial burden equally under
s 21 Neighbourhood Disputes – Dividing Fences Act 2011.
That decision was a final decision and as such is binding on all parties to the dispute.
Applications to reopen, correct, renew or amend a decision
A party to a dispute may lodge an application on Form 43 for reopening, correction, renewal or amendment of the tribunal’s orders. The applicant brought the application as he phrased it, to “correct” the decision.
The tribunal may correct a decision under s 135 of the QCAT Act if there has been a clerical mistake, or an accidental slip or omission, arithmetical error or incorrect description, or a defect of form in orders made. In the tribunal’s view in its consideration of the facts of this matter, none of these types of errors infected that decision.
The tribunal may also order the reopening of a proceeding under s 139 QCAT Act if it considers a ground for reopening exists for either party. As no fresh or compelling new evidence was provided for the tribunal on
8 November 2017, and as both parties had attended both mediation and the hearing, the tribunal could find no grounds to support a reopening.
However the tribunal may renew a decision under s 133 QCAT Act if for any reason it is not reasonably possible for the parties to comply with it. In this case the parties were unable to comply because the type of timber specified had become scarce and too expensive. Thus the tribunal made the decision to vary the order only to the extent of substituting another common type of fencing material for the specified type without disturbing the essence of the order.
The decision has been renewed under the provisions of s 133 QCAT Act, and s 134(4) QCAT now prohibits any further renewal of it under those provisions.
Reasons for substitution of type of timber fencing
Mr Starbuck supplied to the tribunal for the hearing on 8 November 2017 an email dated Sunday 16 July 2017 from the approved fencing contractor, Mr Brian Brett, notifying him that “the cost of the fence has been increased dramatically because of the price of the (cypress pine) palings.” Furthermore, the fence would now require additional rails to support the changed size of the type of cypress pine currently available.
S 133 QCAT Act does not envisage that a completely different order can be made when renewing a decision; the tribunal is only able to make the existing order workable if the order is unable to be complied with in its current form. The tribunal lacks the power under s 134(2)(b) QCAT Act to order a chain wire fence as the respondent envisages because an appropriate, considered and final decision already exists.
The respondent’s submissions in relation to treated timber
The respondent raises a large number of issues in her submission in relation to this current application, including that she wishes to have a chain wire fence, that she may have agreed to a colourbond fence if she could have chosen the colour, that she is unable to pay more than the $1,230.00 contribution towards a fence, that she is unable to maintain a treated pine fence, and that chain wire is the most common fencing type around the Bardon area. In particular, she objects to a treated timber fence because she considers it contains allergy producing chemicals detrimental to her daughter’s health.
She also states that the existing fence does not need replacing despite the photos on file showing sections of it are already damaged.
As all of these issues were considered by the original tribunal in making its decision at the hearing, the primary consideration for the tribunal as constituted on 8 November 2017 was whether there might be any potential ill-effect of a treated timber fence on the health of the respondent’s daughter.
The respondent failed to provide any evidence to the tribunal of a causal link between the chemicals used to treat the timber and her daughter’s particular illness, and she similarly failed to provide any medical diagnosis or records of that illness. Consequently, it was impossible for the tribunal to consider this matter any further without such evidence, in fairness to the applicant. In addition, treated timber fences are prevalent in most Brisbane suburbs.
The shared cost of the fencing
In the order of 14 June 2017, the respondent’s contribution was limited to $1,230.00 out of a total cost of $3,390.00, the remainder to be borne by the applicant. Ms Wensley states that she is financially constrained and unable to contribute any further; it is evident from the order of 14 June that the tribunal considered this and adjusted the level of contributions to assist her.
However, it is Mr Starbuck who has brought the application to QCAT. He has paid his filing fee and sought to resolve the dispute relating to a fence between the two properties. He has complied with his obligations under the enabling act, the Neighbourhood Disputes – Dividing Fence Act 2011. His submissions indicate that he had on many occasions sought to reach a compromise with Ms Wensley but was unsuccessful. Mr Starbuck has a right to present his case, a right to seek a fence, and a right to seek renewal of the decision. He bears the greater financial burden for the fence and the responsibility to oversee its construction.
Ms Wensley for her part has consistently sought to delay or avoid some parts of the process at the tribunal, and has demanded a chain wire fence which may no longer be considered suitable in suburbs such as Bardon.
Despite this, at the hearing on the papers on 8 November 2018, the tribunal once again carefully considered Ms Wensley’s stated financial circumstances. However the tribunal must also consider the rules of natural justice under s 28(3) QCAT Act as the applicant would bear an even greater and disproportionate financial burden if the order were not renewed to specify treated timber. The tribunal has an obligation to consider the needs and wishes of Mr Starbuck as well as those of Ms Wensley and has no power to recommence the hearing to enable her to present her submissions again.
The renewed decision
In the tribunal’s view, substituting a common and affordable treated timber for the more expensive cypress pine was the preferable way to enable the final order of 14 June 2017 to take effect with minimal interference to the original decision. The tribunal has an obligation under QCAT Act s 3(a) to provide “accessible, fair, just, economical, informal and quick decisions” and it considered it was both necessary and convenient under s 9(4) to make such an order for substitution to comply with those objectives.
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