| 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…
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- AGLC
- Vasseur v Wright [2011] QCATA 20
- Case
- [2011] QCATA 20
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Tribunal had erred in permitting unsworn evidence and whether the orders should be corrected and renewed. The court considered whether the appellant's contentions about the unsworn evidence and the error in the quote amounted to an error of law. The court also examined whether the changed circumstances, including the respondent's actions inconsistent with the Tribunal's orders, warranted a correction and renewal of the orders.
The court held that there was no error of law in the Tribunal's decision to allow unsworn evidence, as the parties had agreed to this arrangement. The court also found that the error in the quote did not necessitate a correction of the orders, as the parties had agreed on the revised quote. Furthermore, the court determined that the changed circumstances justified the renewal of the orders to ensure they could be implemented. Consequently, the court dismissed the appeal for leave and renewed the Tribunal's orders with certain corrections to reflect the agreed-upon quote and to account for the changed circumstances.
The court's final orders were that the application for leave to appeal was refused and that the orders of the Tribunal in minor civil dispute 1334 of 2010 were corrected and renewed. The renewed orders specified the construction and cost-sharing arrangements for the new dividing fence, with particular attention to the corrected quote and the payment process. The court also provided for the refund of any excess funds deposited by the respondents in the Tribunal’s trust account.
Orders
Orders of the court
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.
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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