Trigenis v Lincez
[2018] QCATA 102
•9 July 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Trigenis v Lincez & Anor [2018] QCATA 102
PARTIES:
ANASTASIA TRIGENIS
(appellant)v BRENDA LINCEZ
(first respondent)
STEVEN LINCEZ(second respondent)
APPLICATION NO/S:
APL413-17
ORIGINATING APPLICATION NO/S:
MCDO1259-17 (Brisbane)
MATTER TYPE:
Appeals
DELIVERED ON:
9 July 2018
HEARING DATE:
3 July 2018
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
Application for Leave to Appeal refused.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – where grounds of complaint chiefly concerning the carrying out of the orders of the Tribunal that a dividing fence be constructed – where no error identified in the order of the Tribunal
REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where survey plan of common boundary – where Tribunal relied on survey plan to identify correct common boundary – where encroachment of gutters and eaves of part of house over common boundary – where issues of encroachment outside jurisdiction of the Tribunal and irrelevant to the decision to order a dividing fence be constructed on the common boundary
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i)
Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondents:
Self-represented
REASONS FOR DECISION
Mr and Mrs Lincez applied to the Tribunal for an order about a dividing fence to be constructed between their property and Ms Trigenis’ property.
The matter was heard before Justices of the Peace and an order was made that a dividing fence be constructed on the common boundary between the properties and in accordance with a quotation obtained by the respondents. The respondents agreed to bear all the costs of construction of the fence and the Tribunal ordered accordingly.
The fence has been built but Ms Trigenis has applied for leave to appeal and appeal the decision of the Justices of the Peace.
Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(3)(a)(i).
Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294, [3].
It is unclear from Ms Trigenis’ application for leave to appeal what the grounds of appeal are. At hearing she clarified that her complaints are as follows:
(a)The fence has been constructed by someone other than the contractor named in the original quotation;
(b)The line of the fence at the front of the properties does not align with the fence constructed at the rear; and
(c)The fence as constructed encroaches on her land.
From the submissions made at the hearing of the appeal, Ms Trigenis has two further grounds of appeal, the first of which appears to be her principal complaint, that:
(a)The survey of the common boundary between the properties is wrong; and
(b)She was not given notice of the proposed fencing work before hearing.
The respondents had the boundary between the properties established by registered surveyors in 2015. The surveyors found that the gutter and some part of the eaves of the appellant’s house encroached over boundary of the respondents’ land. The appellant disputed that at the original hearing and again on application for leave to appeal.
The appellant referred at the original hearing to an earlier survey plan of the two properties and a letter from the Brisbane City Council which she maintained showed her house did not encroach over the common boundary. She did not present that as evidence at the original hearing. She said the documents were with her bank and had been misplaced.
By the time of the hearing of the application for leave to appeal she had found the documents. She filed with her application for leave to appeal an old (undated) plan of survey, an engineer’s plan showing her house constructed away from the boundaries on both sides dated 1999 drawn when her house was re-stumped and a letter from the Brisbane City Council dated 20 October 2000 giving her permission to raise the dwelling.
Leave was granted the appellant at the hearing of the application for leave to appeal to adduce this material as fresh evidence for consideration on the application for leave. Her application in that regard was not opposed by the respondents.
The letter from the Council states approval to raise the dwelling was subject to a clearance of 400mm being observed between the house and both side boundaries. The appellant argues that given the requirement for 400mm clearance, the 2015 survey plan is wrong. She argues that the old survey was correct. But the old survey plan shows no dwellings on any of the parcels of land.
There is no evidence to establish that when the house was raised, a clearance of 400mm to the respondents’ side boundary was maintained. Similarly there is no evidence that both surveys do not show the same boundary line and what is wrong is the siting of the house. The appellant is really saying her house is in the right place and therefore the 2015 survey plan showing her house encroaching on the respondents’ land must be wrong. There is no evidence to support that contention.
But none of this is a matter for the Tribunal. If there is an issue about encroachment then that is a matter for determination in a superior court.
None of the matters of complaint raised by the appellant points to any error in the decision and order of the Justices of the Peace below.
If the fence that has now been constructed is not on the common boundary, which was identified at the hearing by the Justices of the Peace as that boundary identified in the 2015 survey,[3] then the appellant is entitled to bring fresh application in the Tribunal for another fencing order to correct the line of the dividing fence to the 2015 survey line. However, given the respondents say that that part of the fence that has been constructed at the back of the properties (which is the part the appellant is complaining about) has been set inside their side of the boundary because of the many complaints made by the appellant about a fence, there may be no order made to change that state of affairs after another application concerning a fence on the common boundary in any case.
[3]Transcript Page 1-23 Line 1-8.
If the appellant maintains the 2015 survey is wrong, she is entitled to pay for and obtain appropriate expert evidence to support that contention, one would think at minimum another independent survey, and take the matter up with the Registrar of Titles, who has registered the 2015 survey plan at the Titles Registry.
The Justices of the Peace were entitled to rely on the 2015 survey. They were entitled to rely on the evidence of the respondents that service of the original application had been effected on the appellant, which she disputed at hearing. Further the Justices of the Peace carefully examined and confirmed that all the statutory requirements associated with the preparatory steps leading up to application in the Tribunal had been attended to by the respondents.
The appellant also complains that the contractor who did the work was not the contractor who originally quoted. There is no complaint about quality of construction, simply the identity of the contractor. But the appellant paid nothing towards the fence. The identity of the contractor was irrelevant and in any case, like the other complaints of the appellant, has no bearing on the correctness of the decision below made before any of the fencing work was done. But further and in any case, the order of the Tribunal was that the fence be built in accordance with the original contractor’s quotation, not by the original contractor.
None of the grounds raised by the appellant has any prospect of success on appeal. Leave to appeal is refused.
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