Wang v Muller - [2020] QCATA 156

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wang & Anor v Muller & Anor [2020] QCATA 156

PARTIES: STEPHANIE WANG AND ANOR

(applicants)

v

KAREN MULLER AND ANOR

(respondents)

APPLICATION NO:

APL182-20

ORIGINATING APPLICATION NO:

MCDO 134 of 2019 Holland Park

MATTER TYPE:

Appeals

DELIVERED ON:

13 November 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:
1.   Leave to appeal is granted.

2.   The appeal is allowed.

3.   The application numbered MCDO 134 of 2019 is dismissed.

CATCHWORDS:
Queensland Civil and Administrative Tribunal Act (Qld) 2009 s 32
Building Act 1975 (Qld) s 231B, s 232, s 245XH, Chapter 5, Parts 1, 3-6
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 5, s 9, s 10
James Hardie Industries NV v Australian Securities and Investments Commission (2010) 274 ALR 85
Watson v Foxman (1995) 49 NSWLR 315

APPEARANCES & REPRESENTATION:

These matters were heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

At the material times the Applicants (‘Wangs’) and Respondents (‘Mullers’) owned adjacent residential properties in Stiller Avenue, Runcorn.
This dispute is about payment for renovation of a fence cum pool fence[1] dividing those properties. Muller says that, under an agreement made on or about 15 March 2019 the Wangs owe them $1,479.50 (being half the cost of the renovation). The Wangs admit the agreement[2] but relying on a statutory defence they deny liability.
[1]Transcript of hearing 8 June 2020 (`T’) page 5 line 25.
[2]Wangs to Mullers text message 15 March 2019; T page 3 lines 19-32; Wangs’ submission filed 10 July 2020 3^rd paragraph.
In early March 2019 the Mullers arranged a meeting with the Wangs. Mullers said that the dilapidation of the existing fence raised `a safety issue’[3] with respect to Mullers’ swimming pool.
[3]Mullers’ `fence notes’ page 3; Wangs’ statement of evidence page 1;.text message Mullers to Wangs 5 March 2019, 20 July 2019, 29 July 2019; Wangs to Mullers (date obscured- about January 2020; `big safety issue with your pool’.
The new fence was completed in mid-April 2019[4]; the Mullers agreed to delay payment of Wangs’ share to the following August. It remains wholly unpaid.
[4]Mullers to Wangs, text message 15 March 2019; 4 July 2019.
On or about 4 July 2019 Wangs made an open offer to settle for $1,000.[5] That offer was rejected,[6] unwisely, as hindsight now suggests. But evidently and understandably the Mullers were unaware of the convoluted relationship between the two statutes involved.
[5]Mullers’ submission filed 23 July 2019; Wangs’ submission filed 2 July 2019 page 1.
[6]Mullers’ submission filed 23/7/19; Wangs’ submission filed 2 July 2020 page 1.
In the event Wangs have paid nothing to the Mullers, despite the March 2019 agreement.
The Mullers commenced these proceedings on 2 August 2019. On 8 June 2020 the Tribunal ordered the Wangs to pay Mullers $1,796.10. An application for a stay of judgment was refused on 20 July 2020.
On 2 July 2020 the Wangs sought leave to appeal against the primary Tribunal’s decision.
In support of their refusal to pay, Wangs rely substantially on section 245XH(2) of the Building Act 1975 (Qld), which provides:
If the dividing fence forms part of a barrier for a regulated pool on only one parcel of adjoining land - (a) to the extent the work is attributable to a pool owner complying with section 232(1), the cost of carrying out the work is to be borne solely by the pool owner.
I shall return to this provision shortly.
The Wangs also seek to vitiate the agreement by contending that the Mullers took advantage of them, as recent arrivals in Australia,[7] and adopted a threatening and overbearing attitude towards them. [8] These aspersions should not have been made. Allegations of deceit or undue pressure should not be raised without cogent evidence[9], of which there is none in this case. Any pressure to pay occurred months after the agreement was made, Indeed, there is evidence that, at and about that time, the Mullers acted in a helpful and neighbourly manner towards the Wangs.[10]
[7]T page 5 line 41.
[8]Submission to primary Tribunal, undated, paragraph 1.
[9]Watson v Foxman (1995) 49 NSWLR 315; James Hardie Industries NV v Australian Securities and Investments Commission (2010) 274 ALR 85.
[10]In matters of assistance with urgent repairs: text messages 6-7 March 2019 (electrician); 8 March 2019 (contact with plumber).
I return now to the Building Act point.
At several points in the trial the learned Adjudicator ruled to this effect:
The legislation says that neighbours should try to reach an agreement. If they can’t reach an agreement, the legislation sets out the procedure that has to be followed, which starts with giving a notice to contribute to proposed fencing work. Where there is an agreement, there is no need to proceed that way.[11]
[11]T page 6 Lines 20-24; see also page 8 lines 1-4.
It may be presumed that in those passages the Adjudicator had in mind section 10 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (`the Fences Act’). That section materially states:
No effect on agreements or particular law: (1) This chapter does not affect – (a) a covenant or agreement, other than an agreement under this chapter, made between adjoining owners about a dividing fence before and after the commencement of this section.
However, section 10 of the Fences Act is preceded by this provision[12]:
Non-application of provisions to barrier of regulated pool: (1) Parts 3 to 6 do not apply in relation to a fence, or part of a fence, that is a barrier of a regulated pool.
[12]Section 9.
Part 3 of the Building Act deals with Neighbours’ Responsibilities, Part 4 with Process for Obtaining Contribution, Part 5 with Unauthorised Construction, and Part 6 with Process if common boundary not agreed.
It is clear that in conception and execution the construction in question was designed as a pool barrier. Payment for a pool barrier is governed not by the Fences Act, but by the Building Act 1975 (Qld).
It follows that `a barrier of a regulated pool’[13] is not the same thing, in law, as a dividing fence simpliciter. The Building Act[14] defines a `regulated pool’ as including `the barriers for the pool’; the expression `barriers for the pool’ includes, in turn, `the fencing for the pool’. In consequence of section 9 of the Fences Act the contribution provisions of that Act do not govern regulated pools or their barriers.
[13]Including a pool on a single detached property.Building Act Chapter 5 Part 1.
[14]Building Act s 231B(1) and (2).
Further, the `freedom of contract’ clause in section 10 of the Fences Act (see above) is confined to dividing fences, and does not govern pool barriers. The `freedom of contract clause’ in the Fences Act is not reflected in the pool barrier provisions of the Building Act. This is hardly surprising when one considers the safety considerations that apply to swimming pools, particularly where venturesome or wandering children are concerned.
Payment for a pool barrier on only one of two adjoining properties is governed by section 245XH(2) of the Building Act. Materially that subsection provides:
If the dividing fence forms part of a barrier for a regulated pool on only 1 parcel of adjoining land ... [then] to the extent the work is attributable to a pool owner complying with section 232(1)[15] the cost of carrying out the work is to be borne solely by the pool owner.
[15]Section 232 (1)(b) of the Building Act requires the owner of a regulated pool to ensure that all barriers for the pool are kept in good condition.
Section 5 of the Fences Act states that, unless otherwise expressly stated, nothing in that Act affects the operation of another Act or law.
It follows that the relevant provisions of the Building Act are mandatory, unable to be defeated or avoided by an agreement of the kind allowed by section 10 of the Fences Act.
No contrary proposition appears in the Mullers’ evidence or in their submissions in response to the application for leave to appeal.[16]
[16]Submissions filed on 20 August 2020.
Notwithstanding doubts that may be felt about the moral merits of the defence, the necessary conclusion is that the application should succeed. That is the law the Tribunal is bound to apply.
Consequently leave must be granted and the appeal upheld.
The primary decision is set aside, and in lieu thereof it is ordered that application MCDO 134 of 2019 filed on 2 August 2019 be dismissed.
ORDERS
Leave to appeal is granted.
The appeal is upheld.
The application numbered MCDO 134 of 2019 is dismissed.