Vasseur v Wright
[2011] QCATA 20
•16 February 2011
| CITATION: | Vasseur v Wright [2011] QCATA 20 |
| APPELLANT: | Mr Jacques Vasseur (Applicant/Appellant) |
| v | |
| RESPONDENT: | Mr Graeme and Mrs Merilyn Wright (Respondent) |
| APPLICATION NUMBER: | APL130-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, A/President |
| DELIVERED ON: | 16 February 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Application for leave to appeal is refused. 2. The orders of the Tribunal in minor civil dispute 1334 of 2010 as corrected and renewed are: 1. The new dividing fence is to be erected on the common boundary between the properties of the parties. 2. Mr Vasseur must cut down to the ground and remove tree roots to any and all trees within .5 of a metre of the common boundary within 30 days. 3. The fence must be constructed in accordance with the revised quote dated 22 June 2010 from Super Nova Building Services Pty Ltd. 4. The construction of the fence must be completed within 3 months of the expiration of the 30 day period referred to in paragraph 2. 5. Mr Vasseur must pay for the cost of construction of the fence. 6. Upon Mr Vasseur providing to the Tribunal proof of payment of the total cost of construction, a sum equivalent to 20% of that cost, but no more than $1,045, will be paid to Mr Vasseur from the funds deposited by Mr and Mrs Wright in the Tribunal’s trust account. If 20% of the total cost of construction is less than $1,045, the balance will be refunded by the Tribunal to Mr and Mrs Wright. |
| CATCHWORDS : | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – DIVIDING FENCE – where dispute over contribution to costs of new fence along common boundary – where evidence not taken on oath – whether error of law to permit unsworn evidence to be given by parties – where parties agreed there was an error in a quote to which the original orders referred – whether that should be corrected – where the respondent had taken action inconsistent with the orders of the Tribunal – whether the orders should be renewed so they could be implemented in light of changed circumstances Queensland Civil and Administrative Tribunal Act 2009 ss 28(3)(a), 28(3)(b), 28(3)(c), 133, 135(1)(c), 142(3)(a)(i) Casey v Repatriation Commission (1995) 60 FCR 510 |
REASONS FOR DECISION
The Wrights and Mr Vasseur are neighbours. They are in dispute about the fence along their common boundary. Mr and Mrs Wright applied to QCAT for an order that Mr Vasseur contribute to the repair or replacement of the fence.
In QCAT’s minor civil dispute division, an Adjudicator made orders providing for the erection of a new dividing fence and for Mr Vasseur to pay 80% of the cost of the fence. The order took into account evidence about damage to the original fence caused by the roots and branches of trees on Mr Vasseur’s property.
Mr Vasseur has applied for leave to appeal (and if successful appeal) the decision of the learned Adjudicator. Leave is necessary to appeal a decision in a minor civil dispute matter.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(i).
Mr Vasseur’s grounds for appeal are:
a) The Learned Adjudicator did not consider all of the evidence presented by the Applicant;
b) The evidence taken on the first day of the hearing was not sworn;
c) The boundary to be fenced is 38 metres, not 62 metres as stated in the quote referred to in the orders made on 17 June 2010; and
d) The orders made by the Adjudicator to erect a new dividing fence and to remove trees and tree roots within .5 of a metre of the dividing fence can not be carried out until the common boundary is identified.
Leave to appeal is not normally granted unless there is an error in the decision or there is some question of general importance to which a decision of the Appeal Tribunal would be to the public advantage.[2]
[2] Vivlios v Votino [2010] QCATA 42.
The real complaint associated with Mr Vasseur’s first ground of appeal is the learned Adjudicator’s decision to apportion responsibility for the building of the new fence 80% to Mr Vasseur and 20% to Mr and Mrs Wright. The recording of the hearing reveals the learned Adjudicator considered the evidence from both parties fairly and in full. He apportioned responsibility for the cost of the fence to reflect evidence that the roots and branches of trees on Mr Vasseur’s property were primarily responsible for the destruction of the old fence. The apportionment also took into account the fence divides a common boundary, the benefit of which would be enjoyed by both parties. There is no error in the learned Adjudicator’s approach and the decision he made was reasonably open to him. This ground is without merit.
Mr Vasseur’s second ground, that the evidence given on the first day was not sworn, is also without merit. The Queensland Civil and Administrative Tribunal Act 2009 (“the Act”) provides a wide discretion as to the form in which the Tribunal receives evidence.[3] The Tribunal is not bound by the rules of evidence or any practices or procedures applying to courts of record, other than to the extent the Tribunal adopts those rules, practices and procedures.[4] Subject to the rules of fairness and natural justice[5] the Tribunal may inform itself on any matter, in such manner as it thinks appropriate.[6] Section 57 of the Act provides the Tribunal may take evidence on oath – it does not require it to do so.[7] What is important is that the Tribunal has properly considered questions of relevance and weight in determining the matter.
[3]Casey v Repatriation Commission (1995) 60 FCR 510; Secretary, Department of Social Security v Jordan & Jiang (1998) 155 ALR 236 at 245.
[4] Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(b).
[5] Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(a).
[6]; Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(c).
[7]Secretary, Department of Social Security v Jordan & Jiang (1998) 155 ALR 236 at 245.
In the present matter it is clear the learned Adjudicator intended to have the parties sworn in on the first day but neglected to do so. There is no suggestion that the nature of the evidence differed because of that omission. Both parties had the opportunity to say what they could about the matter and to question the version of events put forward by the other. The learned Adjudicator considered the relevance of the evidence given and weighed the evidence where there was conflict. Further, the conflict focussed on what was the appropriate apportionment of costs between the parties, rather than upon findings the learned Adjudicator was required to make about the facts. In large part, the facts were agreed. It cannot be said that receiving unsworn evidence affected either the learned Adjudicator’s decision-making process or the fairness of the hearing.
Mr Vasseur’s third and fourth grounds are related. The learned Adjudicator made orders including the following:
2. The Respondent shall cut down to the ground and remove tree roots to any and all trees within .5 of a metre of the common boundary within 30 days;
3. The fence is to then be constructed in accordance with revised quote dated 4th June 2010 from Super Nova Building Services Pty Ltd.
The quote referred to in the order assumed a common boundary of 62 metres. A revised quote corrected that error. Mr and Mrs Wright subsequently sought an order to correctly state the common boundary is 38 metres.
Mr Vasseur agrees the common boundary is 38 metres. In making his final orders the learned Adjudicator relied on a document which, unbeknownst to him, was incorrect. There is agreement that, regardless of the fate of Mr Vasseur’s application, the error should be corrected. The Tribunal may correct a decision that contains a material mistake in the description of a thing mentioned in the decision.[8]
[8] Queensland Civil and Administrative Tribunal Act 2009 s 135(1)(c).
As to the location of the common boundary, it seems Mr Vasseur has taken matters into his own hands and commenced to construct a fence along the boundary. This would suggest that there is, in fact, no lack of clarity about the location of the boundary.
The Wrights did express their concern that Mr Vasseur was constructing a fence which did not accord with the order of the Adjudicator. The Tribunal may renew a decision where there are problems implementing the Tribunal’s decision.[9] It is appropriate to exercise those powers to account for Mr Vasseur’s actions since the orders were made.
[9] Queensland Civil and Administrative Tribunal Act 2009 s 133.
It is clear that the learned Adjudicator intended to limit the Wright’s liability to 20% of the costs of the dividing fence. Given the change of circumstances since the orders were made, the orders will be revised to limit the Wright’s liability to the amount determined by the proportion fixed by the learned Adjudicator based on the quote (revised to take account of a 38 metre long boundary). On a total cost of $5,225 (from the revised quote) the Wright’s liability will be capped at $1,045. The Wrights have already paid that sum into the Tribunal’s trust account in accordance with the Tribunal’s orders formerly made. Renewed orders will take that into account.
There was no error by the learned Adjudicator and no basis for granting leave to appeal. The application is dismissed. The decision of 17 June 2010 in Brisbane Minor Civil Dispute 1334 of 2010 is corrected as indicated.
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