Wong v Arthur

[2020] QCAT 89

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wong v Arthur [2020] QCAT 89

PARTIES:

CHI TAK WONG

(applicant)

v

MANUEL ARTHUR

(respondent)

APPLICATION NO/S:

MCDO1850-18

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

31 March 2020

HEARING DATE:

10 September 2019

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

The Application be dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – dividing fence – common boundary – sleeper retaining wall with timber dividing fence above it – Tribunal’s jurisdiction in relation to retaining walls – whether or not the timber dividing fence was a ‘sufficient dividing fence’

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 11, s 12, s 13, s 31, s 33, s 35, s 36

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 83

White v Steer [2018] QCATA 30

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

1. By an Application for minor civil dispute – dividing fences filed on 21 December 2018 (‘the Application’), the Applicant sought orders against his neighbour, the Respondent, under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDA’) in relation to a dividing fence between the parties’ respective properties.

Background

1. The Applicant served a Form 2 Notice to Contribute for Fencing Work (pursuant to s 31 of the NDA) seeking a 50% contribution towards the amount of $9,889.00 for the cost of replacing a timber retaining wall and timber fence between adjoining properties located in Mansfield in the State of Queensland. The properties are owned by the Applicant and the Respondent respectively. The Applicant’s property is to the left of the Respondent’s property as viewed from the street.

2. The Applicant’s property is at a lower level than the Respondent’s property. The Respondent contends that the difference in levels is due to a cut in the natural earth level occurring at the time the Applicant’s house was built.

3. The parties sought to resolve the dispute between themselves and despite negotiating in good faith have not been able to resolve their differences.

4. The Applicant tendered various photographs of the retaining wall and the dividing fence separating the respective properties (exhibit 1 and 2 (eight photographs in total)).

5. It is evident from the photographs that the structure referred to by the parties as the ‘retaining wall’ comprises horizontal timber sleepers supported by vertical timber posts. A timber fence, comprising closely set vertical palings affixed to horizontal railings, in turn affixed to vertical timber posts, sits atop the retaining wall with the vertical timber posts affixed to both the horizontal timber sleepers and the vertical posts of the retaining wall.

6. It was said by the Applicant, and it is evident from the photographs, that the retaining wall has given way at two sections, at the front of his property and at the rear of his property. At the rear section, the section of sleepers has broken apart under the apparent force of the earth behind it. At…