Stocks v Talbot
[2013] QCAT 289
•31 May 2013
| CITATION: | Stocks v Talbot [2013] QCAT 289 |
| PARTIES: | Mr Paul Stocks (Applicant) |
| V | |
| Mrs Shirley Talbot (Respondent) |
| APPLICATION NUMBER: | MCDO2736/12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kate Buxton, Adjudicator |
| DELIVERED ON: | 31 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applicant remove the existing fence and erect a fence along the boundary between the parties properties for 45 metres in length in either Colorbond or treated hardwood at a height of 1800mm (“the fencing works”). 2. The applicants are to arrange and pay for the fencing works by 30 July 2013. 3. Within 14 days of completion of the fencing works the applicant will request in writing from the respondent a sum equal to half the cost of the fencing works or $1,400.00 which ever is LESS (“the respondent’s contribution”). 4. The respondent will pay the respondent’s contribution to the applicant within 30 days of the written request to do so. |
| CATCHWORDS: | Dividing fence – type and contribution – sufficiency of evidence Neighbourhood Dispute Resolution Act 2011 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This neighbourhood dispute arose following the applicant as representative for the Body Corporate for Winton Lodge (a body corporate in control of a unit development on 158 Main Street, Beenleigh) delivering a notice to fence to the respondent, Mrs Talbot, the owner of the neighbouring property at 160 Main Street, Beenleigh.
The notice to fence was delivered on 23 August 2012 and sought a contribution of $1,935.00 from Mrs Talbot being 50% of the cost of erecting a Colorbond fence along the boundary.
The applicant states that the existing timber fence should be replaced with 1.8 metre high Colorbond fencing because:
(a)The existing timber fence has deteriorated;
(b)There is both damp and termite activity along the boundary;
(c)The need to replace a timber fence would be accelerated by these factors making Colorbond the better choice.
The applicant has filed material in support of its claim that a Colorbond fence be erected, including letters from the individual residents at the unit block expressing a desire for the fencing to be Colorbond.
The only material filed by Mrs Talbot was a letter dated 17 February 2013. In that letter Mrs Talbot did not dispute that the fence needed replacing and she agreed that termites had from time to time attacked the timber fencing. She asserted that she could not afford to contribute to the fence.
Following the initial hearing of this application, where the matters in Mrs Talbot’s letter were brought to the attention of the applicant, the parties were each given an opportunity to file written statements addressing whether and in what way the fence ought be replaced and if so, who should pay or contribute to that fence.
Only the applicant filed a statement.
The applicant was also directed to file an up to date quote for both a Colorbond and treated timber fence. The applicant failed to comply with that direction.
This failure to comply with the Tribunal’s direction is extremely unhelpful both to the Tribunal’s decision making process and to the applicant’s case. The applicant seeks orders about the erection of a fence and about who should pay what for that fence. The applicant’s failure to comply with the simple directions has two consequences. Firstly, there is no current quote which the Tribunal can direct the applicant to accept. Secondly, there is no evidence before the Tribunal about the comparative cost of timber and Colorbond fencing. In circumstances where the respondents only real submission is that the exercise is too costly for her, and where the applicants are asking for an order that the respondent contribute to a Colorbond fence instead of replacing like for like timber fencing, the applicants have not provided the Tribunal with the essential evidence needed to establish the reasonableness of the orders they seek.
It is clear that the fence does require replacement, and that the use of a Colorbond fence is the strong preference of the residents at the applicant property. All the parties appear to agree that the Colorbond fence would be more expensive, although there is no evidence of how much more.
In my view it is fair, taking into account the principles in the Neighbourhood Disputes Resolution Act 2011, that a fence be built and that the respondent contribute to it. The usual position is that the cost be borne equally. However, given that the existing fence is timber, it also seems fair in all the circumstances that the respondent’s contribution be granted to half the cost of a timber fence.
There is no evidence as to that cost. The only evidence as to cost is out of date quotes for removal of the existing fence and the supply of 45 metres of Colorbond 1800mm fencing. The removal and disposal of the existing fence should be shared and is unlikely to be more than $300.00 plus GST (or 10% of the quote that has been supplied). A timber fence may have cost in the region of $50.00 per linear metre, totalling $2,250.00 plus GST. I have had to make assumptions on these two costs doing the best I can on the material available as the applicant has not provided the essential evidence.
These sums together, $300.00 plus $2,250.00 ($2,550.00 together) plus GST of 10%, total $2,800.00. Half, or 50% of this sum approximates to $1,400.00. The respondent’s contribution will be limited to this maximum sum.
I will therefore direct:
1.The applicant remove the existing fence and erect a fence along the boundary between the parties properties for 45 metres in length in either Colorbond or treated hardwood at a height of 1800mm (“the fencing works”).
2.The applicants are to arrange and pay for the fencing works by 30 July 2013.
3.Within 14 days of completion of the fencing works the applicant will request in writing from the respondent a sum equal to half the cost of the fencing works or $1,400.00 which ever is LESS (“the respondent’s contribution”).
4.The respondent will pay the respondent’s contribution to the applicant within 30 days of the written request to do so.
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