White v Barclay - [2012] QCAT 655

CITATION:

White v Barclay and Anor [2012] QCAT 655

PARTIES:	Peter John White (Applicant)
v
John Barclay Annette Barclay (Respondents)

APPLICATION NUMBER:

MCDO835-12

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

14 September 2012

HEARD AT:

Brisbane

DECISION OF:

J Bertelsen, Adjudicator

DELIVERED ON:

10 December 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The applicant Mr White reapply palings to that part of the fence temporarily affixed with plywood (half to 1 metre).

2. In the event of non compliance liberty to apply.

CATCHWORDS:

Minor civil dispute – erection of dividing fence – adequacy of foundations – raising of land abutting a dividing fence – fixture of things to a dividing fence – retaining wall to be considered a separate issue

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr White

RESPONDENT:

Mr Barclay

REASONS FOR DECISION

Application

Mr White owner of 24 Twigg Street, Indooroopilly makes application for orders for the fencing of the boundary line between his property and Mr and Mrs Barclay’s property situated 22 Twigg Street, Indooroopilly.

Background and evidence

The form 2 notice to contribute for fencing work attached to the application seeks the “construction of fence and concrete work to stabilise bank under fence per attached quotations and drawings”. In describing what the fence is to be constructed of the notice states “concrete and/or concrete block supporting lap and cap fencing.” The estimated cost is $14,021.70 payable on Mr White’s assertion by the respondents Mr and Mrs Barclay.
In his application to the Tribunal Mr White suggested 3 options aimed at rectifying damage to the existing fence.
The boundary line is some 75-80 metres long. The section of concern is the last 4 metres that divides the houses and where the applicant’s pool decking abuts the boundary line. Sometime prior in 1996 it appears a retaining wall of sorts was constructed for some 50 metres in from the street frontage. It is of besser block foundation with pillars of besser block and timber panels. Then there is the 4 metre section in contention. Thereafter the land drops away towards the river where a mesh fence serves as a dividing fence.
The 4 metre section in contention is where Mr White’s pool decking abuts the boundary line. There a lap and cap timber fence forms the dividing fence.
Photographic evidence produced by Mr White indicates the following relative to his pool decking as follows:
1.Decking joists abutting the fence and its posts immediately below the lower dividing fence rail.
2.Joists forming part of a solid heavy timber framework.
3.Boards or sleepers abutting the fence above the lower fence rail to support a raised garden bed on Barclays’ side of the fence.
4.The original fence posts in stirrups after the raised garden bed has been excavated.
5.The boards/sleepers attached to the fence posts being above the level of decking on Mr White’s side of the fence.
6.Rotting of the boards/sleepers supporting the raised garden bed.
7.The boards/sleepers having the effect of raising the garden bed to a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading White v Barclay

Details

AGLC: White v Barclay [2012] QCAT 655
Case: [2012] QCAT 655
Decision Date

CaseChat Overview and Summary

In the matter of White v Barclay, the applicant, Mr White, sought orders for the repair and stabilisation of a dividing fence between his property at 24 Twigg Street, Indooroopilly, and the respondents' property at 22 Twigg Street, Indooroopilly. The dispute arose from the alleged inadequate construction of the retaining wall and the resulting damage to the fence, particularly the 4-metre section adjacent to Mr White’s pool decking. The Tribunal was tasked with determining whether the respondents were responsible for contributing to the cost of the proposed fencing work and whether the existing fence required significant repairs.

The primary legal issue before the Tribunal was whether the respondents, Mr and Mrs Barclay, were liable to contribute to the cost of the proposed repairs and stabilisation of the dividing fence. This involved assessing the adequacy of the retaining wall's construction and its impact on the fence. Additionally, the Tribunal had to consider whether the deteriorating condition of the fence was due to the respondents' actions, specifically the construction of a raised garden bed that exerted pressure on the fence. Furthermore, the Tribunal had to clarify whether the issue of the retaining wall's construction and location was a matter to be determined in the context of the dispute over the dividing fence.

The Tribunal found that the retaining wall, upon which the fence was built, was inadequately constructed, leading to the fence's current state of disrepair. However, the Tribunal concluded that the respondents were not responsible for the excessive water overflow and resultant damage to the fence, as this was not a matter within the scope of the dispute over the dividing fence. The Tribunal further determined that the fence, while not in its most aesthetically pleasing condition, was adequate and did not require the extensive repairs proposed by Mr White. The Tribunal ordered Mr White to replace the palings in the specified section of the fence and granted liberty to apply if he did not comply with this order.

In conclusion, the Tribunal held that the respondents were not liable for the proposed extensive repairs to the fence, as the current condition did not necessitate such measures. The Tribunal also clarified that the issues surrounding the retaining wall's construction and placement were separate from the dispute over the dividing fence and could not be determined within the context of this Tribunal's jurisdiction.

Orders