Wicks v Fox - [2024] QCATA 92

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wicks v Fox [2024] QCATA 92

PARTIES:

BERNARDINE WICKS

(first applicant/appellant)

ROBERT WICKS

(second applicant/appellant)

v

COLLIN FOX

(respondent)

APPLICATION NO/S:

APL233-23

ORIGINATING APPLICATION NO/S:

MCDO38-22

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

28 August 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

1.     The application for leave to appeal is granted.

2.     The appeal is upheld.

3.     The decision to dismiss the application in question on 13 July 2023 is set aside.

4.     In lieu thereof, Fox must permit an engineer or other suitably qualified person to conduct soil tests on his side of the fence to determine the extent of fill on his side of the dividing fence to determine the extent to which deficiencies in filled soil, particularly drainage deficiencies, have caused a deterioration, if any, of the foundations of the retaining wall supporting the dividing fence.

5.     Wicks may engage an engineer to carry out the said inspections within four weeks of this order and to prepare a relevant report within fourteen days of their completion.

CATCHWORDS:

MINOR CIVIL DISPUTE – DIVIDING FENCE DISPUTE – interlocutory application – where application for inspection of adjacent property – where expert evidence sought – where at first instance application dismissed without reasons – where appropriate that primary decision maker give reasons – where leave to appeal granted – where appeal allowed and primary decision set aside

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 122, s 142

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)

Davis v Davis, Wissing (party cited) (1963) 5 FLR 398
Harris v Caladine (1991) 172 CLR 84

Jet 60 Minute Cleaners Pty Ltd v Brownette [1981] 2 NSWLR 232

Poyser and Mills’ Arbitration, Re [1964] 2 QB 167
Public Service Board of NSW v Osmond (1986) 159 CLR 656

R v King; ex parte Westfield Corporation (Victoria) Ltd (1981) 64 LGRA 28

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

INSPECTION ORDER SOUGHT

In this dividing fence dispute[1] the original respondent Robert Wicks (‘Wicks’) made the following interlocutory application:
1. That … Collin Fox permit an engineer or other suitably qualified person to conduct soil tests on his side of the dividing fence to determine the extent of fill on his side and the extent to which defects on his side e.g drainage deficiencies have caused a deterioration to the foundations of the retaining wall supporting the dividing fence.
2. That the respondent [Wicks] engage an engineer to carry out the inspections referred to in 1 within 4 weeks of the making of the order and for the engineer to provide a report in relation to his inspection within the 14 days thereafter.
[1]Under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
Order refused
In response to that request the…

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 Wicks v Fox

Details

AGLC: Wicks v Fox [2024] QCATA 92
Case: [2024] QCATA 92
Decision Date: 28 August 2024

CaseChat Overview and Summary

The case of Wicks v Fox involves a minor civil dispute between neighbours over a dividing fence. The primary dispute concerns the condition of the soil and the retaining wall supporting the fence. The case was heard in the Supreme Court of Queensland, which has jurisdiction to hear such minor civil disputes. The applicant, Wicks, sought leave to appeal an interlocutory decision that dismissed their application for an inspection of the adjacent property and for expert evidence regarding the condition of the soil and retaining wall. Wicks argued that without an inspection, they would be unable to ascertain the extent to which deficiencies in the filled soil, particularly drainage deficiencies, have caused a deterioration of the foundations of the retaining wall.

The legal issues before the court were whether the primary decision-maker was required to provide reasons for their decision and whether Wicks was entitled to an inspection of the adjacent property and expert evidence. The court found that it was appropriate for the primary decision-maker to provide reasons for their decision, as this is a fundamental principle of natural justice. The court also found that Wicks was entitled to an inspection of the adjacent property and expert evidence, as this was necessary to determine the cause of the deterioration of the retaining wall and to ensure that any necessary repairs were carried out in a timely and effective manner.

The court granted leave to appeal and upheld the appeal, setting aside the primary decision. The court found that the primary decision-maker had erred in law by failing to provide reasons for their decision and by dismissing the application without considering the need for an inspection of the adjacent property and expert evidence. The court ordered that Fox must permit an engineer or other suitably qualified person to conduct soil tests on their side of the fence to determine the extent of fill on their side of the dividing fence to determine the extent to which deficiencies in filled soil, particularly drainage deficiencies, have caused a deterioration, if any, of the foundations of the retaining wall supporting the dividing fence. Wicks may engage an engineer to carry out the said inspections within four weeks of this order and to prepare a relevant report within fourteen days of their completion.

In conclusion, the court found in favour of Wicks and ordered that they be permitted to conduct soil tests on the adjacent property and obtain expert evidence. The court emphasised the importance of natural justice and the need for decision-makers to provide reasons for their decisions. The court also highlighted the importance of ensuring that any necessary repairs to the dividing fence are carried out in a timely and effective manner to prevent further disputes between neighbours.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is upheld.

3. The decision to dismiss the application in question on 13 July 2023 is set aside.

4. In lieu thereof, Fox must permit an engineer or other suitably qualified person to conduct soil tests on his side of the fence to determine the extent of fill on his side of the dividing fence to determine the extent to which deficiencies in filled soil, particularly drainage deficiencies, have caused a deterioration, if any, of the foundations of the retaining wall supporting the dividing fence.

5. Wicks may engage an engineer to carry out the said inspections within four weeks of this order and to prepare a relevant report within fourteen days of their completion.

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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