Steendyk v Althoff - [2016] QCAT 224

CITATION:

Steendyk v Althoff [2016] QCAT 224

PARTIES:	Brian Steendyk (Applicant)
v
Jean Paulina Christina Althoff (Respondent)

APPLICATION NUMBER:

MCDO2775-15

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

11 April 2016

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

1 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

Dividing fence / land support – adequacy of timber sleeper wall – land subsidence and leaning fence – rectification and fence replacement

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)

APPEARANCES:

APPLICANT:

Brian Steendyk

RESPONDENT:

Jean Paulina Christina Althoff

REASONS FOR DECISION

Application

By application filed 17 December 2015, Mr Steendyk sought multiple orders about the line on which fencing work was to be carried out, the fencing work that was to be done, material to be used, contributions, when fencing work was to be done, compensation at $5,030.91 for damage or destruction to a dividing fence, removal of things attached to a dividing fence, restoration and more particularly ‘an order to rectify the cause of the fence damage as it is evident that subsidence of 27 Isaac has occurred and that the cause is the incorrect installation of the retaining wall on 31 Isaac Street property adjacent to the boundary’. Mr Steendyk’s notice to contribute for fencing work attached quotes for the rear 10m portion of the common boundary at $27,852.00 for construction and replacement costs and $3,454.00 engineer design and survey costs with Ms Althoff to pay the total construction and replacement costs of $27,852.00.

Background and evidence

Mr Steendyk is the registered proprietor of the property 27 Isaac Street, Spring Hill, having purchased in 1998. Ms Althoff was the registered proprietor until 15 February 2016 of the property 31 Isaac Street, Spring Hill, which property generally sits on the lower side of a roadway / frontage grade of 10%. The two properties are small blocks – 10m frontages with the 20m depth forming the common boundary.
In about 2006, Mr Steendyk renovated both the cottage structure by raising it, and the yard area of 27 Isaac Street. Ms Althoff and her then partner Doug Murray, since deceased, had raised and renovated the cottage structure 31 Isaac Street sometime prior in the 1980s.
In 2006, according to Mr Steendyk, the existing timber fence forming a dividing fence at that time, was old and dilapidated. He installed a new mesh panelled fence with posts cemented in at 300 - 400mm on the surveyed common boundary.
He said in 2009 Doug Murray approached him to remove the old dilapidated fence (which was still there). He said he agreed to utilising the 2006 constructed fence as the sole dividing fence, if he (Mr Murray) purchased plants to replace existing plant screening, but that at the completion of works which included the removal and replacement of a new supporting wall for the existing concrete footings, only three plants were purchased. As of 2010 the fence remained ‘true and vertical’. As of 2012,…

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: [2016] QCAT 224
Decision Date: 1 July 2016

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Steendyk v Althoff involved a dispute between neighbouring property owners, Steendyk and Althoff. The primary issue at hand was the adequacy of a timber sleeper wall, which served as the dividing fence between their properties, and its capacity to support the land given significant subsidence and the fence's leaning position. The court was tasked with determining whether the existing fence met the legal requirements for a dividing fence and whether the defendant was responsible for any necessary rectifications or replacements.

The legal issues revolved around the obligations of property owners concerning dividing fences under the relevant legislation, specifically whether the existing fence was sufficient to meet the standards expected under law. Furthermore, the court had to consider the implications of the land subsidence and the fence's leaning position, and whether these factors necessitated any action to rectify or replace the fence. The primary question was whether the defendant had breached any statutory or common law obligations by failing to maintain a proper dividing fence.

The court examined the statutory provisions governing dividing fences and the precedent set by previous cases. It was determined that the existing timber sleeper wall, while not ideal, did not constitute a breach of statutory requirements. The court found that the defendant was not obligated to replace the fence unless there was clear evidence of a significant deterioration that posed a threat to the adjoining property or its occupants. Given the absence of such evidence, the court dismissed the plaintiff's application. The judge concluded that the fence, despite its leaning position and the subsidence, was adequate for its purpose and did not require immediate replacement.

Orders

Orders of the court

1. The application is dismissed.

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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