Zacaropoulos v Davison - [2022] QCAT 257

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Zacaropoulos v Davison [2022] QCAT 257

PARTIES:

ANDREW ZACAROPOULOS
(applicant)

v

BOHDAN DAVISON

(respondent)

APPLICATION NO:

MCDO1035-21

MATTER TYPE:

Dividing Fences Claim

DELIVERED ON:

6 July 2022

HEARING DATE:

22 April 2022

HEARD AT:

Brisbane

DECISION OF:

Member Dr Collier

ORDERS:

1.    The existing retaining wall and fence between 32 and 34 Coachella Crescent is to be removed and disposed of. The cost of this is to be paid for 100% by Mr Zacaropoulos.

2.    A new retaining wall between the properties is to be built to a safe and workmanlike standard. The cost of this is to be paid for 100% by Mr Zacaropoulos.

3.    A new dividing fence between the properties is to be built. The new fence is to be colorbond. The cost of this fence is to be paid by the parties as follows:

(a)     By Mr Davison: one-third of the cost of a timber fence plus the whole of any additional cost incurred by building a colorbond fence; and

(b)    By Mr Zacaropoulos: two-thirds of the cost of a timber fence.

4.    The work required to give effect to each of Orders 1, 2, and 3 is to be planned and organised by Mr Zacaropoulos.

5.    Leave is granted to either party to apply for further Orders or Directions.

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

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – orders about a retaining wall with associated dividing fence – sharing of costs

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 7(2), s 11(2)(a), s 13, s 21(1), s 30, s 31, s 35(1)(f), s 91
Queensland Civil and Administrative Tribunal Act 2009 (Qld), Chapter 2, Division 6

White v Steer [2018] QCATA 30
Wong v Arthur [2020] QCAT 89

APPEARANCES & REPRESENTATION:

Applicant:

A Zacaropoulos

Respondent:

B Davison

REASONS FOR DECISION

This matter started with the Respondent being Little Real Estate (Qld) Pty Ltd. By Order of the Tribunal dated 22 April 2022 the Respondent in this matter was changed to Bohdan Davison.
Mr Zacaropoulos is the owner of a private residence at 32 Coachella Crescent Upper Coomera, and Mr Davison is the owner of the adjoining private residence at 34 Coachella Crescent.
Between these two properties is an existing timber paling fence and a contiguous small retaining wall comprising horizontal timber sleepers restrained by small vertical posts.
Mr Zacaropoulos seeks the intervention of the Tribunal to require the parties to contribute to the rehabilitation of the retaining wall and replacement of the existing fence.
Facts
The retaining wall between the properties varies in height between approximately 200mm and 500mm.
The evidence shows that there is a gently falling slope from the northern boundary of 34 Coachella Crescent to 32 Coachella…

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 Zacaropoulos v Davison

Details

AGLC: Zacaropoulos v Davison [2022] QCAT 257
Case: [2022] QCAT 257
Decision Date

CaseChat Overview and Summary

In Zacaropoulos v Davison, Mr Zacaropoulos sought orders from the Tribunal to require the parties to contribute to the rehabilitation of the retaining wall and the replacement of the existing fence between their properties. The retaining wall, which varied in height from 200mm to 500mm, was located between 32 and 34 Coachella Crescent. Mr Zacaropoulos’ residence was built before Mr Davison’s, which was completed in August 2013. The fence had been constructed prior to the construction of Mr Davison’s house. The dispute centred on the parties' obligations under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA) concerning the retaining wall and the fence.

The legal issues before the court included whether Mr Zacaropoulos had substantially complied with the notice provisions under the NDA and whether the Tribunal had jurisdiction to order the rehabilitation of the retaining wall. The court found that although the NDA does not define a retaining wall as a fence, it provides the Tribunal with the authority to order work on a retaining wall as an adjunct to an order about fencing work. The court also noted that the explanatory notes to the Bill and comments from the New South Wales Law Reform Commission indicated that retaining walls generally benefit one adjoining owner more than the other, making it difficult to impose joint liability for their maintenance or replacement. The court concluded that the Tribunal’s jurisdiction was limited to ordering retaining wall work necessary to carry out an order about fencing work.

The Tribunal ordered the removal and disposal of the existing retaining wall and fence, with Mr Zacaropoulos bearing 100% of the cost. It also ordered the construction of a new retaining wall and a new dividing fence, with the costs shared between the parties. The Tribunal granted leave to either party to apply for further orders or directions. The decision emphasised the limited jurisdiction of the Tribunal in relation to retaining walls and the necessity of substantial compliance with the NDA’s notice provisions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr Zacaropoulos seeks the intervention of the Tribunal to require the parties to contribute to the rehabilitation of the retaining wall and replacement of the existing fence.Facts The retaining wall between the properties varies in height between approximately 200mm and 500mm. The evidence shows that there is a gently falling slope from the northern boundary of 34 Coachella Crescent to 32 Coachella Crescent, with the slope continuing southward. Mr Zacaropoulos’ residence at 32 Coachella Crescent was built before Mr Davison’s residence at 34 Coachella Crescent. Mr Davison’s residence at 34 Coachella Crescent was completed in August 2013.[1][1]As stated by in an email dated 13 April 2022 by Glen Angus, General Manager of MG Homes. MG Homes built Mr Davison’s house. The fence between the properties had been constructed and was in place before the house at 34 Coachella Crescent was built.The relevant law The relevant legislation, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA), requires that the owner requesting work be completed on a fence must give the adjoining owner a notice to contribute in the approved from and provide specific details.[2] Mr Davison disputes that Mr Zacaropoulos has complied with these provisions.[2]NDA ss 30 and 31. However, this dispute existed for over twelve months before the date of the hearing and the nature and details of the dispute are well known and understood by the parties. Section 91 of the NDA states that “Substantial compliance with any agreement, notice or order mentioned in this Act is adequate for this Act.” I am satisfied that any possible defect in notices issued by Mr Zacaropoulos is not fatal to his application here, and that there has been substantial compliance concerning notices for the purposes of the NDA. The Tribunal’s jurisdiction as it concerns this matter is restricted to fences and, as defined by s 11(2)(a) of the NDA, a retaining wall is not a fence. The NDA defines a retaining wall as a structure that supports excavated or filled earth.[3][3]Definitions in the Schedule to the NDA. Recognising that it may be impossible in some instances to distinguish between fencing work and associated works, the NDA provides that the Tribunal may, for an application in relation to fencing work for a dividing fence, decide and order any other work to be carried out that is necessary to carry out the fencing work ordered under this section including work for a retaining wall.[4][4]NDA s 35(1)(f). In White v Steer,[5] the Tribunal said, in its appeal jurisdiction:[5][2018] QCATA 30, pars [14] to [17].The NDA gives the tribunal jurisdiction to make orders about fencing work. It is clear the tribunal has no jurisdiction to make orders about retaining walls other than as an adjunct to an order about fencing work pursuant to s 35. It is an ancillary power only. The limit of that ancillary power is not made clear in the legislation. One of the extrinsic aids available where legislation is ambiguous or unclear in meaning is the explanatory note or memorandum relating to the Bill introducing the legislation into parliament. Here the explanatory notes to the Bill explain that the definition of a fence excludes a retaining wall for a specific purpose. The comments of the New South Wales Law Reform Commission on the subject of dividing fences are considered pertinent and the following extract from the Commission is set out in the explanatory notes:Retaining walls serve quite different purposes from fences. They are usually substantial and extensive structures which repose within the subsurface of the land of one adjoining owner .... Retaining walls are usually erected solely for the benefit of the owner who undertakes excavation work. The explanatory notes continue:Generally retaining walls involve engineering specifications prior to construction. They are more than the mere levelling of dirt.Unlike fences, it is not usually possible to make both adjoining owners liable for the cost of maintaining, repairing or replacing a retaining wall. This is because usually a retaining wall is of greater benefit to one of the adjoining owners.However, the kinds of orders which QCAT can make about carrying out fencing work include work for a retaining wall if the repair of the fence is dependent upon the work for the retaining wall. It is clear that the tribunal can only make an order about a retaining wall where the retaining wall work is necessary to give effect to an order about fencing work ...[6][6]Quoted with approval in Wong v Arthur [2020] QCAT 89.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

No costs order will be made in this matter.Decision The Tribunal makes the following Orders:1. The existing retaining wall and fence between 32 and 34 Coachella Crescent is to be removed and disposed of. The cost of this is to be paid for 100% by Mr Zacaropoulos.2. A new retaining wall between the properties is to be built to a safe and workmanlike standard. The cost of this is to be paid for 100% by Mr Zacaropoulos.3. A new dividing fence between the properties is to be built. The new fence is to be colorbond. The cost of this fence is to be paid by the parties as follows:(a)By Mr Davison: one-third of the cost of a timber fence plus the whole of any additional cost incurred by building a colorbond fence; and(b)By Mr Zacaropoulos: two-thirds of the cost of a timber fence.4. The work required to give effect to each of Orders 1, 2, and 3 is to be planned and organised by Mr Zacaropoulos.5. Leave is granted to either party to apply for further Orders or Directions.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Zacaropoulos v Davison [2022] QCAT 257
PARTIES:	ANDREW ZACAROPOULOS (applicant)
v
BOHDAN DAVISON (respondent)
APPLICATION NO:	MCDO1035-21
MATTER TYPE:	Dividing Fences Claim
DELIVERED ON:	6 July 2022
HEARING DATE:	22 April 2022
HEARD AT:	Brisbane
DECISION OF:	Member Dr Collier
ORDERS:	1. The existing retaining wall and fence between 32 and 34 Coachella Crescent is to be removed and disposed of. The cost of this is to be paid for 100% by Mr Zacaropoulos. 2. A new retaining wall between the properties is to be built to a safe and workmanlike standard. The cost of this is to be paid for 100% by Mr Zacaropoulos. 3. A new dividing fence between the properties is to be built. The new fence is to be colorbond. The cost of this fence is to be paid by the parties as follows: (a) By Mr Davison: one-third of the cost of a timber fence plus the whole of any additional cost incurred by building a colorbond fence; and (b) By Mr Zacaropoulos: two-thirds of the cost of a timber fence. 4. The work required to give effect to each of Orders 1, 2, and 3 is to be planned and organised by Mr Zacaropoulos. 5. Leave is granted to either party to apply for further Orders or Directions.
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 REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – orders about a retaining wall with associated dividing fence – sharing of costs Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 7(2), s 11(2)(a), s 13, s 21(1), s 30, s 31, s 35(1)(f), s 91 Queensland Civil and Administrative Tribunal Act 2009 (Qld), Chapter 2, Division 6 White v Steer [2018] QCATA 30 Wong v Arthur [2020] QCAT 89
APPEARANCES & REPRESENTATION:
Applicant:	A Zacaropoulos
Respondent:	B Davison