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  • Unreported Judgment

Steendyk v Althoff

 

[2016] QCAT 224

CITATION:

Steendyk v Althoff [2016] QCAT 224

PARTIES:

Brian Steendyk

(Applicant)

v

Jean Paulina Christina Althoff

(Respondent)

APPLICATION NUMBER:

MCDO2775-15

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

11 April 2016

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

1 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application is dismissed.

CATCHWORDS:

Dividing fence / land support – adequacy of timber sleeper wall – land subsidence and leaning fence – rectification and fence replacement

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

APPEARANCES:

APPLICANT:

Brian Steendyk

RESPONDENT:

Jean Paulina Christina Althoff

REASONS FOR DECISION

Application

  1. [1]
    By application filed 17 December 2015, Mr Steendyk sought multiple orders about the line on which fencing work was to be carried out, the fencing work that was to be done, material to be used, contributions, when fencing work was to be done, compensation at $5,030.91 for damage or destruction to a dividing fence, removal of things attached to a dividing fence, restoration and more particularly ‘an order to rectify the cause of the fence damage as it is evident that subsidence of 27 Isaac has occurred and that the cause is the incorrect installation of the retaining wall on 31 Isaac Street property adjacent to the boundary’. Mr Steendyk’s notice to contribute for fencing work attached quotes for the rear 10m portion of the common boundary at $27,852.00 for construction and replacement costs and $3,454.00 engineer design and survey costs with Ms Althoff to pay the total construction and replacement costs of $27,852.00.

Background and evidence

  1. [2]
    Mr Steendyk is the registered proprietor of the property 27 Isaac Street, Spring Hill, having purchased in 1998. Ms Althoff was the registered proprietor until 15 February 2016 of the property 31 Isaac Street, Spring Hill, which property generally sits on the lower side of a roadway / frontage grade of 10%. The two properties are small blocks – 10m frontages with the 20m depth forming the common boundary.
  2. [3]
    In about 2006, Mr Steendyk renovated both the cottage structure by raising it, and the yard area of 27 Isaac Street. Ms Althoff and her then partner Doug Murray, since deceased, had raised and renovated the cottage structure 31 Isaac Street sometime prior in the 1980s.
  3. [4]
    In 2006, according to Mr Steendyk, the existing timber fence forming a dividing fence at that time, was old and dilapidated. He installed a new mesh panelled fence with posts cemented in at 300 - 400mm on the surveyed common boundary.
  4. [5]
    He said in 2009 Doug Murray approached him to remove the old dilapidated fence (which was still there). He said he agreed to utilising the 2006 constructed fence as the sole dividing fence, if he (Mr Murray) purchased plants to replace existing plant screening, but that at the completion of works which included the removal and replacement of a new supporting wall for the existing concrete footings, only three plants were purchased. As of 2010 the fence remained ‘true and vertical’. As of 2012, he said he was concerned at the subsidence of the supporting wall and erosion; that the fence had already started to incline towards 31 Isaac Street due to the subsidence and dissipation of inadequate and inappropriate backfill placed adjacent to the timber sleeper retaining wall, and the leeching out of that backfill at each end of the timber sleeper retaining wall. He asserted that a support wall was required to be built and a new fence constructed for this 10m section totally at the cost of Ms Althoff at $27,852.00. At hearing Mr Steendyk reduced his claim to $13,713.00.
  5. [6]
    In 2014, 31 Isaac Street was placed on the market. Mr Steendyk emailed the selling agent setting out his chronology of fencing issues to that time.
  6. [7]
    The property at 31 Isaac Street was again placed on the market in 2015. Mr Steendyk again raised his fencing issues with the selling agent as well as, he said, attempting to speak to Ms Althoff. On 17 December 2015, he filed this application.
  7. [8]
    Mr Steendyk obtained a report from Chrichton Engineering Pty Ltd dated 17 December 2015. It stated, amongst other things:

It was apparent that the soil at the edge of the property was supported by a timber sleeper retaining wall constructed entirely on the adjoining property [i.e. number 31]. The wall extended from the rear of the house at 31 Isaac Street to the back of the property. The wall height is 600mm high along its length.

  1. [9]
    The report stated:

It was reported by Mr Steendyk that the owner of the adjoining property had removed an existing retaining wall and excavated a soil bank along the side adjacent to 27 Isaac Street to the boundary line and installed a wall in 2009…

It is apparent from the inspection and the photographs of the wall from 31 Isaac Street that the wall has not rotated, however the soil backfill behind the wall has significantly settled with the soil level 200 below the top of the wall and 300mm below the original finished ground level on 27 Isaac Street…

It is also noted the wall is a timber sleeper type wall constructed using landscaping type sleepers. Whilst these sleepers are treated with a CCA preservative, the preservative is only effective in penetrating the sapwood and does not protect the heartwood of the timber. TRADAC in their standard design and specification for timber retaining walls recommend using Durability Class 1 hardwood with heartwood treated to Class H5. As consequence of the type of timber used to construct the wall, the life of the wall is likely to be relatively short…

  1. [10]
    Ms Althoff asserted that Mr Steendyk’s claim was not about a dividing fence at all; that he was asking for a core filled retaining wall with turf, paving, decorative stones and jasmine plants which was effectively a project to benefit Mr Steendyk only. She said, in 2006 27 Isaac Street’s house and yard were renovated; that on his side of his property he simply dug a trench with holes for his fence poles and filled this with concrete.
  2. [11]
    Ms Althoff said, in 2009 Mr Murray, with the approval of Mr Steendyk, ‘removed a separate and derelict wooden (covered in jasmine vine) fence on the boundary line’; that once the old fence was removed Mr Steendyk’s established chain-wire mesh fence became completely exposed; as Mr Steendyk felt he had lost privacy he requested Mr Murray plant new jasmine plants on his chain-wire mesh fence. Mr Murray complied building at the same time ‘a sleeper garden bed wall on the property side of 31 Isaac Street to tidy up the area’. The chain-wire mesh fence was not interfered with other than by the planting of some jasmine plants.
  3. [12]
    Historically Ms Althoff said that she and Mr Murray purchased 31 Isaac Street in 2001. After Mr Murray died in March 2014 she decided to sell the house. On 19 May 2014, she received an email forwarded by her selling agent, Alex Rutherford. That email contained a chronology of Mr Steendyk’s view of matters to that time. Ms Althoff disputed that Mr Murray had done anything detrimental to the integrity of Mr Steendyk’s property; that she was unaware of any retaining wall prior to 2009. Rather, she said, it was because Mr Steendyk:

Did not build an adequate retaining wall on his 27 Isaac Street side to contain the higher level of earth moved or levelled during the construction of the major renovation works to his property in or about 2006. The property 31 Isaac Street’s side has been there for over a century with the ground still the original or natural level.

  1. [13]
    Ms Althoff produced photos of the sleeper retaining wall with thick jasmine vegetation overlapping both the wire-mesh fence and sleeper retaining wall.
  2. [14]
    Ms Althoff took 31 Isaac Street off the market after May 2014, but relisted the property for sale with Jeff Jones Real Estate in October 2015. Once again Mr Steendyk had emailed the agent stating, amongst other things, that ‘council’s compliance officers are scheduled to be on site as well and I understand they have the authority to order the wall to be appropriately reinstated’. It seems that no council compliance officers ever attended. Ms Althoff said she was not aware of any reports or quotes regarding Mr Steendyk’s claims.
  3. [15]
    On 5 November 2015, Ms Althoff received a notice to contribute for fencing work estimated to cost a total of $31,306.00, with Ms Althoff to contribute $27,852.00, and Mr Steendyk $3,454.00. Ms Althoff, in response, provided a quotation for $5,030.91 to replace the dividing fence without any admission of necessity to do so, offering 50% contribution. She then arranged an engineer’s report from CSM Group Pty Ltd (‘Mr Delahunty’) which was forwarded to Mr Steendyk on 18 December 2015.
  4. [16]
    On 18 December 2015, Ms Althoff entered into a sale contract for 31 Isaac Street with a Ms Janet Hughes, whom Ms Althoff described as Mr Steendyk’s ‘girlfriend’. Ms Althoff left Australia on 19 December 2015 to attend to family medical matters returning on 13 February 2016. Ms Althoff was aware that Ms Hughes knew about the dispute with Mr Steendyk, but because she wanted to sell she agreed to an unconditional indemnity clause in the sale contract, indemnifying Ms Hughes against all claims by Mr Steendyk in respect of ‘the fence and any retaining wall (whether under the NDRA or otherwise)’.
  5. [17]
    Ms Althoff said a further price reduction in the sale price was requested by Ms Hughes’ lawyers in the sum of $24,500.00 to cover a list of some 11 items which were defects or shortcomings in the property. Amongst those items was a major cost item being removal and replacement of spiral staircase - $10,152.00. That quote was provided by Mr Steendyk. Ms Althoff said she felt harassed by Mr Steendyk’s actions apropos[1] the purchase by Ms Hughes. Finally, settlement of the sale was effected on 15 February 2016. Ms Althoff stated she received Mr Steendyk’s QCAT application on Wednesday 17 February 2016.
  6. [18]
    The CSM Group Pty Ltd report dated 17 December 2015 was produced to the Tribunal. With respect to the rear 10m of the common boundary, the report stated:

The remaining 10m at the rear of the property consists of a timber garden retaining wall approximately 600mm high within the No 31 property and behind this timber garden retaining wall is a 1.8m high galvanised steel post and chain wire fence mounted within a 200 series masonry block wall approximately 600mm high within the No 27 property which has been constructed by the number 27 owner…

The .6m high timber garden retaining wall within the No 31 property seems to be in fair to good condition with no signs of distress.

  1. [19]
    The report stated further:

Some soil erosion under the 600mm masonry block wall footing was observed at the rear of the properties i.e. the northern end of the common side boundary within No 27.

  1. [20]
    Final comments in the report included:

The existing 600mm high timber garden sleeper retaining wall located within No 31 inside the common eastern lot boundary is in fair to good condition and does not need strengthening or replacing.

Multiple photos of the rear 10m boundary, the sleeper wall, vegetation, galvanised posts and footings were attached.

  1. [21]
    In evidence at hearing, Mr Delahunty stated he understood the steel post and wire fence was built in conjunction with a 200 series masonry block wall; that the steel posts were imbedded into the masonry blocks of the block retaining wall and that the fence footing had rotated causing the fence to lean; that the sleeper retaining wall located in 31 Isaac Street was simply supporting garden soil and plants on 31 Isaac Street’s property.
  2. [22]
    In cross-examination Mr Delahunty said that galvanised steel posts with the 600 high were adequate for the intended use of combining a fence into a block retaining wall; that such opinion was based on ocular (visual) inspection of the whole of the 20m common boundary serviced by 10m of block retaining wall from the front boundary, and his observation of the rear post footing (viewed from rear back corner of No 31) in front of which was, what appeared to be, a block wall. He thought there was also block retaining wall for the 10m rear portion of the boundary. The rear 10m boundary was full of garden and thick vegetation at the time of his observations. In short, he ‘presumed that that block wall ran all the way along the long common side boundary’ which it did not.
  3. [23]
    Mr Delahunty confirmed he thought the timber sleeper wall was 500mm inside number 31.
  4. [24]
    Mr Steendyk produced a survey plan dated 15 November 2015 depicting the common boundary and identifying ‘existing GI post and mesh fence atop concrete retainer’ as being within number 31. It also marked the existing timber sleeper retainer as being further within number 31.
  5. [25]
    When Ms Althoff delivered paperwork to Mr Steendyk a few days prior to hearing she observed that the ‘retaining wall issue boundary area had been demolished’. Photos dated 6 April 2016 were produced in support.

Conclusions

  1. [26]
    There is an initial issue to be determined here, jurisdiction.
  2. [27]
    The notice to contribute for fencing work was dated 5 November 2015. The Minor Civil Dispute – Dividing Fence application was filed in the Tribunal on 17 December 2015. On 18 December 2015, Ms Althoff signed a sale contract for 31 Isaac Street. Settlement took place on 15 February 2016. The application came before the Tribunal on 11 April 2016. Given that chronology, it is clear Mr Steendyk had no standing to seek fencing orders against Ms Althoff at the time of the hearing. As opposed to ‘tree orders’ made by the Tribunal, dividing fence orders do not run with the land i.e. prosecution of fencing orders can only devolve on the owner / registered proprietor of adjoining land at the time of the making of those orders. In short, Ms Althoff had sometime since ceased to be the owner / registered proprietor of 31 Isaac Street and could not be the subject of any fencing orders.
  3. [28]
    Alternatively, there was no evidence produced to the Tribunal of the existence of any retaining wall of any nature prior to 2009 in respect of the rear 10m common boundary the subject of this proceeding. It seems the properties had, shall one say, co-existed for the best part of a hundred years without the necessity for any retaining wall of any nature.
  4. [29]
    The mesh-panelled fence installed by Mr Steendyk in 2006, he said, was on the surveyed common boundary. Ms Althoff said that fence was constructed on Mr Steendyk’s side of the common boundary. Either way, the old dilapidated wooden fence, it appears, was adjacent to and on the 31 Isaac Street side of the mesh-panelled fence.
  5. [30]
    The whole of the photographic evidence, and both engineer’s reports confirm the timber sleeper wall as being within 31 Isaac Street, and probably at least to some 500mm. The timber sleeper wall has already been in place for some seven years. Both engineers attested to the timber sleeper wall being some 600mm high. Both engineer’s reports attest to the timber sleeper wall as being in serviceable condition, Chrichton Engineering saying ‘the wall has not rotated’ and CSM / Mr Delahunty saying that the wall was ‘in fair to good condition with no signs of distress’. The only concern seemed to be Chrichton Engineering’s qualification that the ‘type of timber used to construct the wall, the life of the wall is likely to be relatively short’. Chrichton Engineering’s report did not otherwise address the prospective longevity of the wall, which had already been there for some seven years. A mere perception of lack of longevity is no reason, in terms of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), to replace any wall, let alone demand contribution.
  6. [31]
    The Tribunal finds the timber sleeper retaining wall by reference to all the photographic evidence in particular, appeared to be in perfectly good condition.
  7. [32]
    It seems Mr Steendyk’s concerns were more properly centred around the inadequacy and leeching out at each end of the timber sleeper retaining wall of backfill immediately adjacent to that timber sleeper wall, causing the mesh-panelled fence to rotate i.e. exhibit the lean which was evident from photographs he produced at hearing. That may well be the case, in which event it is simply a case of replacement with backfill adequate to maintain a compacted level sufficient to support the mesh-panelled dividing fence, and tidying up of each end of the timber sleeper retaining wall to stop what Mr Steendyk termed ‘fines’ leeching out at each end of that wall. That was never going to involve the major construction / replacement costs and engineer and survey costs as envisaged by the quotes proffered by Mr Steendyk. In fact, the Elite Retaining quote attached to Mr Steendyk’s notice to contribute to fencing work does include costings for turf, paving, decorative stones and jasmine plants – the sorts of things well outside the ambit of a dispute over a dividing fence. The inclusion of such items has contributed to making the quote at $27,852.00 outlandishly high and out of proportion to the relatively minor 10m common boundary issues.
  8. [33]
    If it is asserted that Ms Althoff is to be liable for a complete replacement of the timber sleeper retaining wall and new fence (which obviously is the case because Mr Steendyk has persisted with this claim against her in circumstances where 31 Isaac Street has since been sold and settled) then clearly it is for the Tribunal to decide what works need to be undertaken to bring about a satisfactory resolution pursuant to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
  9. [34]
    It became clear at hearing that the timber sleeper retaining wall had since been demolished and that major renovation works were in progress at 31 Isaac Street. Photos produced to the Tribunal dated 6 April 2016, particularly figures 2, 3, and 4, depict the absence of the timber sleeper retaining wall with the steel fence posts still in place with mesh panels removed. There was no evidence suggesting urgency produced to the Tribunal.
  10. [35]
    Whether it was as a result of some sort of perception on the part of Mr Steendyk and / or Ms Hughes that the timber sleeper retaining wall could simply be demolished and works commenced all to be at the expense of Ms Althoff pursuant to the unqualified indemnity contained in the sale contract was not clear. Suffice to say it was always for the Tribunal to assess the percentage or proportion of liability for fencing work that would be applicable to Ms Althoff or, more correctly, the owner / registered proprietor of 31 Isaac Street at the time.
  11. [36]
    The Tribunal finds the most that Ms Althoff could ever have been liable to contribute was 50% of the cost of a new fence and the replacement of some existing backfill immediately adjacent to the timber sleeper retaining wall on the 31 Isaac Street side of the common boundary. Such would have ensured any new fence would not end up leaning as the mesh-panelled fence did slowly over a period of some years. Some tidying up at each end of the timber sleeper retaining wall would have been conducive to in place retention of backfill. However, that is academic now as the timber sleeper retaining wall was demolished and the mesh-panelled fence dismantled, except for steel posts prior to hearing of this application. In these circumstances there is no requirement for Ms Althoff to contribute to construction and replacement costs.
  12. [37]
    For the above reasons the application ought properly be dismissed in its entirety.

Footnotes

[1]  Amended on 26 September 2017 due to typographical error.

Close

Editorial Notes

  • Published Case Name:

    Steendyk v Althoff

  • Shortened Case Name:

    Steendyk v Althoff

  • MNC:

    [2016] QCAT 224

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Bertelsen

  • Date:

    01 Jul 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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