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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Fisher v Wenzel  QCAT 295
RONALD ERIC FISHER
CHRISTIAN EDWIN WENZEL
KARINA LEE WENZEL
Other minor civil dispute matters
27 September 2019
26 October 2018; 14 February 2019; 29 May 2019
Adjudicator Alan Walsh
REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where long history of fencing disputation between neighbours at The Sovereign Islands – where multiple applications previously filed by applicants against respondents – where only one application resulted in fencing orders by consent – where all other applications failed and were dismissed – where contribution ordered in favour of respondents against applicants not paid - where respondents took enforcement proceedings against applicants in magistrates court – where reopening/renewal application of applicants dismissed
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – fencing dispute – where applicants filed further application for fencing orders and contribution or indemnity from respondents – where new application predicated on fencing notices for four contiguous sections of common boundary of adjoining waterfront properties – whether costs claim for rendering and painting pool pavilion wall on respondents property competent – whether pier and arch fence proposed for section 1 a dividing fence – whether fencing order should be made – whether order for height reduction of nib wall on section 2 should be made – whether indemnity for reduction costs should be ordered – whether claim for contribution to cost of block wall constructed by applicants on section 3 of common boundary should be ordered – whether construction authorised – whether fencing order for aluminium louvre fence on section 4 of common boundary should be ordered – whether application and claims should be dismissed
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGEMENT – where applicants filed application before expiry of 1 month for negotiation prescribed by statute – where applicants did not seek abridgement to validate premature filing of application – where adjudicator raised question of jurisdiction for decision – where tribunal may order abridgement of its own motion where appropriate – whether statutory requirement for negotiation during first month after fencing notice and filing application within second month substantive and fixed or procedural and variable – whether abridgement order ought be made
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – GENERAL MATTERS – STATUTORY BASIS GENERALLY – where applicants filed application because respondents would not waive benefit of contribution order in previous case and agree to pier and arch fence partly on their property – where all but one of claims by applicants had no reasonable prospect of success – where only arguable claim for aluminium louvre fencing order on section 4 of the common boundary and for contribution – where claim for order undermined by construction of the same fence in close proximity – where fencing order impractical and of no utility – whether application an abuse of process – whether conduct of applicants oppressive and vexatious – whether applicants deliberately caused respondents unnecessary inconvenience – whether application should be dismissed pursuant to sections 47 and 48 of Queensland Civil and Administrative Tribunal Act 2009 (Qld)
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – whether cost and compensation orders may be made by tribunal where abuse of process, vexation and unnecessary disadvantage in minor civil dispute results in dismissal of application
Acts Interpretation Act 1954 (Qld), s 32CA(1), s 39
Building Act 1975 (Qld) s 231B, s 231D, s 232, s 245XA, s 245XB, s 245XE, s 245XK, s 245XL, s 245XM, s 245XN, s 245XO, s 245XQ, s 245XT, s 245XZ
Building Act 1975 (Qld), Schedule 2 – Definitions
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 12, s 31, s 35, s 92
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13, s 47, s 48, s 49, s 61, s 102
Queensland Civil and Administrative Tribunal Act Rules 2009 (Qld), r 83, r 84
Taxation Ruling TR 2002/9; section 12-190 of Part 2-5 (the PAYG provisions) of Schedule 1 to the Taxation Administration Act 1953 (‘TAA 1953’)
QDC, part MP3.4 Swimming Pool Barriers, The Pool Safety Standard, Schedule 1
Briginshaw v Briginshaw  HCA 34
Bull v Porteous  QCATA 100
Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney General & Ors  QCA 37
Fisher v Wenzel & Anor  QCAT 456
Fisher v Wenzel (No. 1)  QCAT 261
Fisher v Wenzel (No. 2)  QCAT 298
McCain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Pollard & Anor v Fitzgibbon & Anor  QCATA 42
Reihana v Beenleigh Show Society  QCATA 91
The Pot Man Pty Ltd v Reaoch  QCATA 318
REASONS FOR DECISION
- This is the sixth year of a protracted neighbourhood fencing war in the otherwise tranquil world of The Sovereign Islands on Queensland’s Gold Coast.
- Applications within applications aside, this originating dividing fence application is the fifth iteration of minor civil fencing dispute applications filed with the Tribunal at Southport by Mr and Mrs Fisher for claims against Mr and Mrs Wenzel since 2014.
- The other four applications were Q34/14, Q733/15, Q559/17 in which fencing orders were made by consent at a final hearing, after which Mr and Mrs Fisher filed a renewal/re-opening application in Q559/17, and Q149/18 in which orders were sought concerning the modification of a fence column and removal of a light.
- Each of the dividing fence applications other than the original application in Q559/17 filed by Mr and Mrs Fisher were dismissed. Applications Q34/14 and 733/15 were dismissed for want of jurisdiction.
- The application in Q559/17 for reopening and renewal was dismissed pursuant to sections 47 and 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) for abuse of process and vexatious conduct.
- Application Q149/18 failed on the merits and was dismissed.
- Mr and Mrs Fisher now apply to the Tribunal for orders against Mr and Mrs Wenzel for contribution ‘entitlements’ relating to four contiguous sections of the common boundary of their adjoining properties in Excalibur Court.
- Mr and Mrs Fisher’s application is predicated on three (3) fencing contribution notices, viz. a Form 39 referring to ‘sections 1 and 2,’ a Form 40 referring to ‘section 3,’ and a Form 2 referring to a ‘section 4’ of the common boundary of the parties adjoining properties from approximately the halfway point extending eastward to the waterfront revetment wall, emailed by Mr and Mrs Fisher on 4 June 2018.
- I will elaborate on the areas to which the sections relate a little later.
- Mr and Mrs Wenzel responded to the Forms 39, 40 and 2, by letter dated 6 June 2018 emailed to the Fishers that same day, denying liability to contribute and refusing to pay anything.
- Mr and Mrs Fisher prematurely filed their application in these proceedings on 18 June 2018, two weeks before expiry of the statutory negotiation period of one month on 3 July 2018.
- Mr Fisher said that he and his wife had legal advice from their solicitors that they could do so.
- However, the two statutes which regulate what fencing contribution notices may be given, and when, clearly require that at least one month for negotiation has elapsed before an application for a fencing dispute is filed with this Tribunal within the second month.
- To ensure procedural fairness, I made an order on 22 March 2019 that Mr and Mrs Fisher file and serve any written submissions on which they wished to rely in reply to the Wenzel submissions on jurisdiction, which they did.
- I have considered the submissions.
- The question of jurisdiction is whether, insofar as they prescribe the time for doing (or not doing) things, section 31 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and sections 245XE and 245XN (amongst others) of the Building Act 1975 (Qld) are substantive and fixed or procedural and variable.
Section 31 – Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)
- Section 31 applies where there is a dividing defence dispute and neither of the adjoining properties has a swimming pool.
- If, within 1 month after a notice to contribute for fencing work is given, owners of adjoining properties have not agreed about proposed fencing work to be carried out and their contribution then one or the other or all of them may, within 2 months after the notice is given, apply to QCAT for orders under section 35 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
Sections 245XE and 245XN – Building Act 1975 (Qld)
- Sections 245XE and 245XN, which apply in the case of non-urgent and urgent pool barrier fencing works respectively, are similarly worded to section 31 in allowing 1 month after giving a contribution notice for negotiation and the filing of an Application with QCAT within 2 months for orders under section 245XQ of the Building Act 1975 (Qld).
- There are conflicting cases on the question of whether the Tribunal has jurisdiction to extend the period of 2 months from when a contribution notice is given within which to file an application for fencing orders.
- The decisions on time extension are also relevant to whether the Tribunal may abridge or shorten the time for negotiation in order to validate the filing of an application for fencing orders within the first month allowed for negotiation.
- In Bull v Porteous  QCATA 100, Dr Forbes held that the special remedy created by section 31 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) defines the limits of the Tribunal’s jurisdiction and an applicant’s cause of action.
- Dr Forbes held that section 31(6) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) is a mandatory and substantive rule of law that the Tribunal has no power to repeal or amend.
- He said that:
.. (T)his type of statute has been described by members of the High Court as creating … a right of limited duration so that, after expiry of the time prescribed, the right ceases to exist for any purpose. Such a statute is substantive in nature.
- The decision in Pollard & Anor v Fitzgibbon & Anor  QCATA 42, on the other hand, is authority for the proposition that section 31(6) is procedural, rather than substantive, in nature.
- Member Gordon, in that case, said that the Queensland Court of Appeal decision in Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney General & Ors, not considered in Bull v Porteous, is authority for the correct test of legislative intent.
- He posed the question to be answered thus:
…. (D)o the provisions indicate that the Tribunal’s power in section 61 to extend time to start proceedings is ousted?
- He was there referring to section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) and held that the section was not ousted from applying in appropriate cases.
- Section 61 variously gives the Tribunal power to extend or shorten the time fixed for the start of a proceeding by the QCAT Act, an enabling Act and the Tribunal’s rules and to waive compliance with another procedural requirement of that legislation.
- I have carefully considered the decisions in both cases and respectfully prefer the Tribunal’s approach in Pollard, applying Campaigntrack, to that in Bull.
- By corollary, Pollard is authority for the proposition that the Tribunal may abridge or shorten the period of 1 month set aside statutorily for negotiation before an application for a fencing dispute may be filed in appropriate cases.
- Mr and Mrs Fisher prematurely filed their application in circumstances where Mr and Mrs Wenzel had, a mere two days after receipt of the contribution notices, made abundantly clear that they denied liability and would not contribute anything.
- Albeit in hindsight, I accept that waiting for the expiry of the first month for negotiation before commencing proceedings by filing an application with the Tribunal would have been pointless.
- As events then and subsequently reveal, there was no residual prospect of any agreement being reached after Mr and Mrs Wenzel’s letter emailed to Mr and Mrs Fisher on 6 June 2018.
- Therefore, of my own accord, I will make an abridgement order shortening the time for filing the application retrospectively to 18 June 2018 so that I have jurisdiction to hear and decide the fencing dispute.
- That is not to be taken as authority for the proposition that a dividing fence application may be prematurely filed with the Tribunal where there are no exceptional circumstances.
- In the ordinary course, a premature application will likely be summarily dismissed to deter unreasonable behaviour and queue jumping in the litigation process.
- As I have said, the substantive dispute concerns four contiguous sections of the common boundary of the adjoining properties the subject of Mr and Mrs Fisher’s claims for contribution.
- On 12 September 2018, of my own initiative, I ordered that Mr and Mrs Fisher precisely identify the location of each of the four sections of the common boundary referred to in the three contribution notices by reference to a plan of survey.
- Mr Fisher filed an annotated copy of the plan of survey of Mr Henderson, a cadastral surveyor, referring to sections 1 to 4 of the common boundary.
- I re-inspected the common boundary of the adjoining properties at Excalibur Court on 14 February 2019 and took a copy of Mr Fisher’s annotated survey plan with me for the purpose.
- Mr Fisher and Mr Wenzel attended the inspection. I showed them the annotated survey plan. Mrs Fisher attended in the background. Mrs Wenzel did not attend but her husband represented her.
- In Mr Wenzel’s presence at the inspection, Mr Fisher pointed out each of the sections of the common boundary to which his annotations on the plan of survey referred and he also pointed out the various structures in the vicinity.
- I asked Ms Perry, the Hearing Support Officer who accompanied me at the inspection on the day, to take photographs of each of the sections and structures pointed out by Mr Fisher, which she did.
- Upon my direction at the hearing later the same afternoon, Ms Perry handed Mr and Mrs Fisher and Mr and Mrs Wenzel a photocopy of the annotated survey plan and a copy of each of the related photographs taken at the inspection.
Exhibits T1A to T1I – Annotated Plan of Survey and Photographs
- The copy of the annotated survey plan is marked as exhibit T1 and the photocopied photographs are marked as exhibits T1A through to T1I. The letter T connotes a Tribunal exhibit.
- The parties agreed at the hearing that:
- (a)the copies of photographs T1A together with T1B and T1E were of section 1 annotated by Mr Fisher on the survey plan and the backdrop;
- (b)the copies of photographs T1C and T1D were of section 2 and the backdrop;
- (c)the copies of photographs T1F and T1H were of section 3 and the backdrop;
- (d)the copy of photograph T1G depicted a portion of a waterside fence in section 4; and
- (e)the copy of photograph T1I depicted a clear glass panel taken on the boardwalk looking south and showing the border between the property of Mr and Mrs Fisher and their next-door neighbour on that side.
1 - Form 39 Notice to Contribute 29 May 2018
- The Form 39 Notice to Contribute dated 29 May 2018, together with an attachment, referred to sections 1 and 2 of the common boundary of the adjoining properties which are indicated on the copy of the plan of survey which is T1.
- It gave notice of only fourteen days for the proposed start date of 13 June 2018 for the works. One month is required where there is a pool on each of two adjoining properties. No construction works have taken place in the meantime.
Special Purpose Fence Proposed
- Section 1 of the attachment to the Form 39:
- (a)referred to a ‘special purpose’ fence described as approximately 9m long and 3m high to be constructed on the common boundary with no part closer than 40mm to the existing pool pavilion constructed on 21 Excalibur Court using 150 or 200 series masonry concrete reinforced filled block work, the lower portion of which to be constructed with 4 masonry reinforced concrete filled piers which ‘may’ have lightweight infill panels and or horticultural trellis;
- (b)stated that the upper portion of the structure is to be constructed in concrete filled reinforced masonry formed elliptical arches with the ‘fence’ to be partly rendered and painted to match the existing dividing fence vertical face of number 19 to the west and partly clad in sandstone to match the existing dividing fence vertical face of number 19 to the east;
- (c)stated that the costs of the proposed dividing fence are far in excess of the cost of a sufficient dividing fence and that Mr and Mrs Fisher will contribute all costs associated with the works for the piers and elliptical arches in excess of the cost for a sufficient dividing fence used in the neighbourhood; and
- (d)referred to quotations attached.
- The quotations attached were by:
- (a)Exclusive Rendering and Painting dated 25 June 2017 for $1,031.00 for skim rendering and painting the back of the pool pavilion wall on the Wenzel property facing the Fisher property;
- (b)A Plus Brickwork Pty Ltd dated 20 June 2017 for $4,405.50 for a ‘panel 9m l x 1.8m h blocked up along the side of the pool in front of the existing block wall;’ and
- (c)Concrete Sawmilling & Core Drilling dated 14 June 2017 for $467.50 for height reduction of an existing dividing fence section referred to by the parties as a ‘nib wall’ on the common boundary between the back of the pool pavilion wall and the back of the pool shed wall, both of which were located on the Wenzel property parallel to the common boundary.
Money Claim for sections 1 and 2 of the Common Boundary
- The three quotations totalled $5,904.00, the amount referred to in the Form 39 Notice that Mr and Mrs Fisher said that they wanted Mr and Mrs Wenzel to pay in connection with sections 1 and 2 of the common boundary annotated on T1.
Application to Amend/Increase Money Claim
- Mr and Mrs Fisher subsequently sought to add $500.50 for engineering tax invoices for a site inspection and report to the contribution of $5,904.00. I will consider that later.
- The sum of the quotations and invoices overall, for sections 1 and 2 of the common boundary, is $6,404.50 which Mr and Mrs Fisher want Mr and Mrs Wenzel to pay.
Rendering and Painting Claim - Section 1 of the Common Boundary
- The Exclusive Rendering and Painting quotation dated 25 June 2017, for $1,031.00 claimed by Mr and Mrs Fisher, relates to Mr Fisher having rendered and painted the back of the pool pavilion wall on the Wenzel property where it faces the Fisher property. Mr and Mrs Wenzel consented to that being done at the time.
- Though Mr and Mrs Wenzel agreed that Mr and Mrs Fisher could render and paint that wall, which runs parallel to section 1 of the common boundary, they did not agree to contribute to the cost of that work. Neither Mr Fisher nor Mrs Fisher assert that they did.
- Of significance is the fact that the back of the pool pavilion wall facing the Fisher property is located wholly on the property of Mr and Mrs Wenzel, approximately 110 millimetres (or 4.33 inches on the old scale) in from, and approximately parallel to, the common boundary.
- The pool pavilion wall is therefore not a dividing fence as defined in the dividing fences legislation which applies in this case.
- The proximity of the back of the pool pavilion wall to the common boundary, in association with other proximate structures, namely the nib wall on the common boundary depicted in exhibit T1C and the back of the offset pool shed wall depicted in exhibit T1C similarly positioned on the Wenzel property to the east, forms a pool barrier though, except for the nib wall, it is not a dividing fence as such.
- No-one can pass from the Fisher property and pool to the Wenzel property and pool anywhere along the entire east west common boundary because the back walls of the pool pavilion and pool shed respectively, bridged on the common boundary by the nib wall, form an impenetrable barrier to human traffic.
- There is a small gap between the nib wall and each of the offset structures but not even a child could pass through it. A pool safety certificate issued to Mr and Mrs Fisher by Mr Henning, to which I will refer later, made no reference to it. The gap is so small as to be inconsequential.
- Mr and Mrs Fisher have not sought any order in that regard.
- I find that, by their conduct, Mr and Mrs Fisher acknowledged that those structures formed a pool barrier in rendering and painting the back of the pool pavilion wall facing their property and by building a low brick wall retaining a raised garden of shrubbery interspersed with tall, now relatively mature, pencil pine trees at regular intervals.
- There would have been no point to them rendering and painting the pool pavilion wall facing them if they had intended at the time to apply for a fencing order for section 1 of the common boundary, as they do now.
- The rendered, painted pool pavilion wall would no longer be accessible and visible if a block wall dividing fence were to be constructed on the common boundary.
- The photographs, which are exhibits T1A, T1B, part of T1C, part of T1D, T1E and part of T1H, variously depict parts of the low retaining wall (apparently on the common boundary) and the shrubbery and pine trees abutting the retaining wall on the Fisher property along section 1 of the common boundary.
- The entire length of the pool pavilion back wall facing the property of Mr and Mrs Fisher is a non-climbable zone, even if one were to stand on the low brick wall, to which I have referred.
- The sum of $1,031.00 claimed by Mr and Mrs Fisher for rendering and painting the face of the pool pavilion wall on the Wenzel property cannot be recovered as a contribution because it does not relate to a dividing fence as defined in the fencing legislation.
- The only other basis upon which the claim might have succeeded would be as a minor debt if Mr and Mrs Wenzel had agreed to pay $1,031.00 to Mr and Mrs Fisher, which they did not.
- The rendering and painting claim will therefore be dismissed.
Claim for Blockwork Fence Cost as Contribution - Section 1 of the Common Boundary
- The quotation of A Plus Brickwork Pty Ltd, as I earlier noted, referred to a panel 9 lineal meters by 1.8 metres high ‘blocked up along the side of the pool in front of the existing block wall.’
- Speaking for herself, Mrs Fisher said in evidence that such a wall, if ordered to be constructed, would ‘suffice.’ Mr Fisher remained silent at that point, neither agreeing nor disagreeing with his wife.
- However, at the resumed hearing on 29 May 2019, Mr Fisher told me that he and his wife had decided that the application for a ‘new wall’ would be ‘counterproductive.’ He did not however say that they were withdrawing their application for a dividing fence order.
Proposed Pier and Elliptical Arch Fence – Section 1 of the Common Boundary
- Though there is no mention of columns and arches in the quotation of A Plus Brickwork Pty Ltd, Mr and Mrs Fisher referred, in section 1 of the attachment to the Form 39 Notice, to ‘lightweight infill panels or horticultural trellis’ that ‘may’ be added to piers and elliptical arches.
- It is the proposed pier and elliptical arch fence which, in fact, is the ‘dividing fence’ for which Mr and Mrs Fisher seek a contribution from Mr and Mrs Wenzel.
- The claimed ‘contribution’ to the cost of that fence is reckoned as the cost of a block wall of the material and dimension referred to in the quotation of A Plus Brickwork Pty Ltd which Mr and Mrs Fisher have no intention of building.
- Mr Fisher admitted, in oral evidence on 14 February 2019, that he was not seeking an order for a ‘sufficient dividing fence’ and that he did not intend to build the 9 metre block wall dividing fence on section 1 of the common boundary.
- Rather, he said, the piers or columns would be ‘filled block work squares’ (sic) with 200 mm elliptical arches above them.
- I asked whether there would be anything beneath the arches between the columns, to which he replied: ‘not planned at this point.’
- Mr Fisher also said that ‘they’ (the block filled squares and elliptical arches) would go along the line of the common boundary in section 1 and would be of similar configuration to the columns and arches shown in exhibit T1A, depicting the column and arch structure at the waterside end of the pool enclosure.
- Mr Fisher referred, in paragraph 40 of his affidavit sworn 19 December 2018, to exhibit F11, an engineering report dated 7 December 2018 authored by Mr Vrbancic, an engineer with SLN Consulting Structural Engineers.
- Mr Vrbancic said that:
Our understanding (sic) of the proposed masonry arch structure (sic) may be generally described as follows:
- The masonry arch structure is approximately 9m long and 3.1m high (total height). The four masonry columns (sic) (400mm wide and 200mm deep) are proposed to be equally spaced (sic) and maximum 2.2m high. The masonry profiled beam (to create three arches) on top of the columns (sic) is proposed to be maximum 900mm high (and 600mm high at midspan);
- The masonry arch structure (sic) is proposed to be made of fully core filled and reinforced 200 series block work.
- Mr Wenzel said, and I accept, that Mr and Mrs Fisher’s proposed pier and elliptical arch structure would encroach on the Wenzel land between the pool pavilion back wall and the common boundary of the adjoining properties by (up to) 40mm (1.57 inches on the old scale) if it were constructed.
- A dividing fence and footings may lawfully encroach on both sides of the common boundary of adjoining properties because the boundary itself is ascertained as an imaginary line of infinitesimal width by reference to survey points.
- A dividing fence usually, and unobjectionably, overlaps each side of that line with the centre of the fence on it, though an order may be made for another fence line.
- The Title and proprietary rights of adjoining owners are preserved by section 35(2) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and section 245XQ(2) of the Building Act 1975 (Qld). They are identically worded and provide that:
The occupation of land on either side of a dividing fence forming part of a pool barrier, as a result of an order that fencing work is to be carried out on a line other than on the common boundary of the adjoining land, does not affect title to, or possession of, the land.
- The Tribunal may not, however, make a fencing order permitting the encroachment of footings and part of a proposed structure on a neighbouring property where the structure itself is not a dividing fence as defined in the dividing fence legislation, viz. a fence on (my emphasis) the common boundary of the adjoining lands, as is the case here.
- The only exceptions, and neither apply in this case, are where it is impractical to construct a dividing fence on the common boundary of adjoining properties because:
- (a)of natural physical features of the land; or
- (b)the adjoining land includes 1 or more parcels of pastoral land separated by a watercourse, lake, or other natural or artificial feature, insufficient to stop the passage of stock at all times.
- A pool barrier must be continuous. The proposed structure would not be. One could cross over beneath the arches from one side of the fence to the other. A fencing order permitting the construction of a fence that is not a dividing fence, partly encroaching the Wenzel property, would be void.
- Essentially, that is what Mr Wenzel said in his affidavit evidence (and I accept) would be the case here but he had no objection to the proposed structure of whatever specification and height so long as it was built on Mr and Mrs Fisher’s property, providing that it did not encroach on his. Mr and Mrs Fisher showed no interest in that potential solution.
- The following are further insurmountable obstacles to the success of Mr and Mrs Fisher’s Application for an order for the proposed pier and elliptical arch fence.
No Specification for Pier and Elliptical Arch Fence
- Mr Fisher told me that there was no drawing or documentation showing the actual design of the proposed piers and elliptical arches.
- He said that there was (only) a drawing referred to in one of his affidavits ‘showing the overall detail of it’ and that there were no other drawings because his engineer said to him that they would ‘do it in two stages, report first, engineering details later.’
- He told me that:
…You can’t put the cart before the horse, because we don’t know what you’re going to rule.
- However, Mr and Mrs Fisher themselves put the cart before the horse by issuing the Form 39 Notice to contribute, and by applying to the Tribunal for a contribution order, for the proposed pier and elliptical arch structure of uncertain specification which would not fit the description of a dividing fence by definition.
- Mr Fisher admitted that Mr and Mrs Wenzel were correct in saying that what he (Mr Fisher) was proposing would require Council approval, which he had not sought because he and his wife were awaiting a Tribunal decision.
- No fencing order could properly be made for the proposed pier and elliptical arch structure unless Mr and Mrs Fisher first obtained development approval from the Gold Coast City Council.
- Plainly the Tribunal could (and would) never make an order for a dividing fence, whether special purpose or otherwise, which by reason of its height and specifications required development approval that had not first been obtained. To do so would facilitate the contravention of local government town planning law.
Expenditure Claim for Engineering Report and Inspection
- I return to the incidental expenditure claim relating to the proposed pier and elliptical arch fence, to which I referred earlier, for which Mr and Mrs Fisher sought an amendment.
Application to Amend
- Mr Fisher said:
The Applicants request that the Form 39 dated 29 May 2018 submitted in their application 456/18 on the 18th June 2018 be amended from $5,904 to $6,404.50 to reflect the $500.50 invoices from the Engineer.
The costs being additional fencing work required under the Act, the design of a dividing fence and the issue of structural integrity being raised by the Respondents.
- The design of the additional fencing work, to which Mr Fisher there referred, related only to the proposed pier and elliptical arch structure, not a 1.8 metre high block wall dividing fence.
- The invoices are exhibits F11-2 and F11-3 referred to in paragraph 40 of Mr Fisher’s affidavit. F11 -2 is a tax invoice dated 2 November 2018 for $220 for a site inspection with Mr Fisher and ‘associated correspondence’ and liaison and F 11-3 is a tax invoice dated 7 December 2018 for $280.50 for the preparation of a letter of opinion and associated liaison and correspondence.
- Essentially, the claim for reimbursement of the outlay of $500.50 for engineering is for the cost to Mr and Mrs Fisher of producing preliminary documentary opinion and evidence for the proposed pier and elliptical arch structure and footing.
- Except for reasonable costs including for a temporary fence for urgent fencing work and survey costs on notice where appropriate, expenditure other than for the actual construction of a dividing fence cannot be recovered, whether as a contribution or otherwise.
- Insofar as the claimed outlay is a cost incurred in the conduct of this proceeding, it is not recoverable in this minor civil dispute jurisdiction either. Therefore, Mr and Mrs Fisher’s application to amend the contribution claim will be dismissed.
Quotation for Proposed Pier/Elliptical Arch Fence
- Insofar as the cost of the proposed pier and elliptical arch structure itself is concerned, Mr Fisher referred in affidavit evidence to exhibit F10, a quotation of Raymond Talbot Bricklaying dated 8 November 2018, which he said that he had obtained.
- I doubt the authenticity of that quotation for the following reasons:
- (a)no ABN is stated in it;
- (b)though the form of quotation provides for (Address), (Phone Number) and (Web Address), they are not provided;
- (c)though there is provision for (Quote#) in the header of the document, no quotation number or reference is given;
- (d)the quotation amount of $7,700 includes ‘Taxes’ of $700 but does not refer to GST;
- (e)no itemised cost breakdown is given for ‘laying of blocks, Forming of Arches, Sand and Cement, Getting bricks from driveway, Prepare Job and cover up Pool area, and Clean up Job’ referred to in the narrative.
- Even if authentic, the quotation is worthless in an evidentiary sense, bereft of dimensions and specifications for the proposed work and unsupported by approved plans and a development approval as it is, neither of which exist.
- Mr Fisher apparently produced it in an attempt to prove that the proposed pier and elliptical arch fence would cost more than the quoted cost of a block wall fence which will never be built.
Alleged Right to Pier/Elliptical Arch Structure - section 1 of the Common Boundary
- In his affidavit sworn on 19 December 2018 and in written submissions, Mr Fisher said that he and his wife have the right to construct a pool barrier along the common boundary and they rely of section 245XB of the Building Act 1975 (Qld). Mrs Fisher also said so during the hearing.
- However, section 245XB applies where there is a regulated pool on only 1 of the parcels of land. There is a regulated pool on both the adjoining properties in this case. Therefore, it is section 245XE of the Building Act 1975 (Qld) that applies here.
- Notice of at least one month for the proposed start date is required in the Form 39. Only two weeks was given.
- Whether in terms of section 245XE or section 245XB, there is no absolute statutory right in law to a pool barrier fence as contended by Mr and Mrs Fisher. The reasons are as follows.
Each Case on Merits
- Each case falls to be considered on its own facts and merits in determining whether a fencing order may, and should, be made and whether contribution should be ordered. Fencing orders are not made automatically.
Pools Owner Discretion
- Section 245XE of the Building Act 1975 (Qld) provides that, subject to a notice of proposed fencing work and subject to both owners agreeing about carrying out the fencing work or a QCAT order on an application to carry it out, either pool owner may:
- (a)construct, along the common boundary, the part of the barrier for the pools; or
- (b)alter or replace an existing dividing fence to form part of the barrier for pools; or
- (c)attach a thing to the barrier that does not unreasonably and materially alter or damage the fence.
- The legislature’s use of the word ‘may’ in section 245XE, and elsewhere in other sections, including in section 245XB, connotes a discretion. Section 32CA(1) of the Acts Interpretation Act 1954 (Qld) relevantly states that:
May – indicates the power may be exercised or not exercised, at discretion.
- Section 245XE does not compel a pool owner to do any of the stated things where, individually or in combination, they are not required and necessary. A pool owner may not do any of those things where statutory notice prerequisites are not satisfied.
- Equally, section 245XQ of the Building Act 1975 (Qld), which prescribes the orders which the Tribunal may make, does not compel the Tribunal to make an order for any of those things.
- The Tribunal is not required to make fencing orders where essential statutory precursors to an application to the Tribunal have not been satisfied, e.g. the giving of a valid fencing contribution notice.
Section 245XQ of the Building Act 1975 (Qld) - Orders
- The orders which the Tribunal may make in terms of section 245XQ(1)(l) include an order or orders for ‘any other matter necessary for the administration of this part.’ It follows that the Tribunal may decline to make an order, where it is unnecessary to do so. That is synonymous with making no order.
- There is no express provision in section 245XQ(1)(1) of the Building Act 1975 (Qld) akin to that in section 35(1)(g) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the enabling Acts) which says that the Tribunal may order that no dividing fence is required in the circumstances.
- Nothing turns on that omission in this case.
Sections 13, 47 and 48 of the QCAT Act
- The provisions of both enabling Acts intersect with the QCAT Act, in terms of which the Tribunal may dismiss an application in exercising the power to do so under section 13(1) or, for example, pursuant to sections 47(2)(a) and/or 48(2)(a) in appropriate cases.
- Those sections (13, 47 and 48) operate in conjunction with, but are not qualified by, section 13(2)(d) of the QCAT Act which empowers the Tribunal to make orders under section 245XQ of the Building Act 1975 (Qld).
- Mr and Mrs Fisher are not entitled to a dividing fence order in the face of noncompliance with the statutory prerequisites to which I have referred and they are not entitled to an order for the proposed pier and elliptical arch fence for the reasons I have given.
Pool Safety Certificate – Proposed Pier and Elliptical Arch Fence Unnecessary
- I find that Mr Henderson issued the pool safety certificate in respect of the whole of the pool area within the pool enclosure, including the barriers for the pool, of which sections 1, 2 and 3, on the annotated plan of survey which is marked exhibit T1 form part.
- As I have said, the pool enclosure is bounded by:
- (a)the rear wall of the Wenzel pool pavilion adjacent to the common boundary of the adjoining properties;
- (b)the nib wall on the common boundary in section 2;
- (c)the back wall of the Wenzel pool shed on their land in very close proximity to section 3 of the common boundary;
- (d)the parallel sandstone clad block wall subsequently, though unilaterally, constructed by Mr Fisher on the common boundary of the adjoining properties in section 3, to which I will refer later; and
- (e)the wrought iron fencing and gating which secures the other perimeters of the Fisher pool on their property.
- Mr Henning certified that he had inspected Mr and Mrs Fisher’s pool and that he was reasonably satisfied, under the Building Act 1975 (Qld), that the pool is a complying pool.
- It follows that the absence of a pier and elliptical arch structure as proposed ‘in principle’ on the common boundary of section 1 of the adjoining properties does not affect the pool’s current compliance with pool safety laws.
Nib Wall Height Reduction Claim - Section 2 of the Common Boundary
- Section 2 referred to in the attachment to Mr and Mrs Fisher’s Form 39 Notice dated 29 May 2018 referred to a short 1 metre long concrete filled masonry section of existing dividing fence to be ‘reduced in height by approximately 600mm to bring it into alignment with the dividing fence to the east.’
- Hitherto, the parties referred to this as the ‘nib wall.’
- Mr and Mrs Fisher claimed contribution for the cost of reducing the height of the nib wall previously constructed by Mr and Mrs Wenzel, allegedly in breach of building development conditions.
- In their letter emailed on 6 June 2018, Mr and Mrs Wenzel referred to the nib wall between the pool pavilion and garden shed, for which they had building approval at the time.
- They said (and I accept) that this was raised and addressed in documents previously filed in the Tribunal in the earlier cases and that they would not approve a height reduction.
- Mr and Mrs Fisher’s height reduction claim will be dismissed for the following reasons.
No Basis for Height Reduction Claim
- In oral evidence in Q733 of 2015 on 2 March 2016, Mr Fisher:
- (a)said that the nib wall is offset from, but located between, the shed and pavilion or pool house structure;
- (b)accepted that exhibit F161 certified compliance of the new pool house structure, otherwise referred to as the pool pavilion; and
- (c)accepted that exhibit R3 was a final inspection certificate for the shed.
- One might reasonably ask what had changed to make the nib wall height objectionable some four years later when Mr and Mrs Fisher issued their Form 39 Notice dated 29 May 2018.
- In any event, Mr Fisher withdrew his objection to the height of the nib wall at the hearing on 14 February 2019 and abandoned the claim for the height reduction cost of $467.50.
- The claim will therefore be dismissed.
2 - Form 40 Notice to Contribute 27 May 2018
- Mr and Mrs Fisher’s Form 40 – Notice to contribute for urgent fencing work for a pool barrier, made under section 245XN of the Building Act 1975 (Qld), was dated 27 May 2018 and referred to 27 September 2017 (eight months earlier) as the date of the urgent fencing work.
Contribution Claim for Section 3 of the Common Boundary
- The Form 40 Notice related to section 3 on the plan of survey annotated by Mr Fisher and requested a contribution of 100% of the prior cost of construction of a sufficient pool safety fence ($5,920.00) because Mr and Mrs Wenzel allegedly demolished the previous fence without authority.
- I will dismiss the claim for a contribution or indemnity for the cost of this section of fence from Mr and Mrs Wenzel for the following reasons.
No Dividing Fence
- Once again, the allegation that Mr and Mrs Wenzel demolished a dividing fence on section 3 of the common boundary without authority was not supported by any credible evidence from Mr and Mrs Fisher, or anyone on their behalf, in this proceeding or in any of the earlier cases.
- In Q34 of 2014, Mr Fisher said that he accepted that survey markers placed by surveyors Bennett & Bennett, instructed by Mr Wenzel, identified the common boundary of the adjoining properties and that encroachments on the ‘occupational boundary’ had been removed.
- The occupational boundary referred to by Mr Fisher in that case was not the common boundary of the adjoining properties. The evidence in that case, and in the subsequent cases, was that Mr Fisher had built fencing on the Wenzel land which Mr and Mrs Wenzel were entitled to, and did, remove.
No Restoration of a Dividing Fence
- In part 6 of the Form 40, Mr and Mrs Fisher said that:
The urgent fencing work involved restoring (sic) the dividing fence to a reasonable standard using a different design, dimension, materials and/or colour to the original fence, i.e. the new dividing fence is the same length and design, however the height is increased to 1.8m above pool coping. Colour is changed to sandstone on our side.
- However, Mr and Mrs Fisher did not restore a dividing fence. Section 245XK(1) of the Building Act 1975 (Qld) only applies:
…. (I)f all or part of a dividing fence (sic) forming part of a pool barrier is damaged or destroyed and, in the circumstances, urgent (sic) fencing work is required.
- Each of the subsections to section 245XK are predicated on damage or destruction of an existing dividing fence forming part of a pool barrier and, if it is ‘impracticable’ to give notice under section 245XM for a contribution for proposed fencing work, the remedial work may be done without giving advance notice. Those criteria are not satisfied here.
- In the event of truly urgent work needing to be carried out, contribution to the cost of it may be requested from an adjoining property owner after completing it, subject to giving a valid notice under section 245XN of the Building Act 1975 (Qld), implicitly within a reasonable time of doing the work.
- That was not the case here. Alternatively, if it was, the notice was not given within a reasonable time of actually doing the work.
Notice of Fencing Work Not Given
- As I have said, there never was any dividing fence on section 3 of the common boundary of the adjoining properties previously so sections 245XK and 245XN of the Building Act 1975 (Qld) relating to urgent fencing work do, and did, not apply at all.
- The appropriate course would have been for Mr and Mrs Fisher to give a notice of proposed fencing work under section 245XM, which they did not do. Meanwhile, as pool owners, it was their responsibility to erect a temporary barrier on their own property for pool safety.
- The guidance notes in section 5 of the Form 40, which Mr and Mrs Fisher filled out, signed, and therefore must have read, specifically said in bold print with reference to the date of the urgent fencing work that:
If there is a pool on both sides of the common boundary or only on your neighbour’s side at least one month’s notice (sic) must be given and in all other cases 14 Days’ notice.
- The Form 40 did not give notice of one month as required and, in content, it referred to a fait accompli some eight months earlier.
- I accept Mr and Mrs Wenzel’s evidence that the fencing work on section 3 of the common boundary was in fact carried out by Mr Fisher without authorisation in June 2017, not on 27 September 2017 to which the Form 40, signed by Mr and Mrs Fisher on 27 May 2018, referred.
- Mr Wenzel said in evidence that:
And then, after we’d said that we won’t contribute but we’re happy for you to build your own fence on your own property as per your reasons documents back in 2016, he waited until we weren’t home, and then, went and built the fence, behind our back, on the property.
- Whichever be the case, Mr Fisher carried out the fencing work unilaterally, without the required notice and without authorisation, i.e. by agreement or by order of this Tribunal.
- Therefore, even if substantiated, the cost to Mr and Mrs Fisher of construction of a dividing fence on section 3 of the common boundary, which they claim from Mr and Mrs Wenzel, is not recoverable.
- For completeness, I note that Section 7 of the Form 40, relating to any additional work to complete the urgent fencing, stated:
Finishing works have been constructed in sandstone cladding to provide a feature to our side. We wish to pay the difference between the works completed (sic) and what render and paint would cost (attached quote).
- The difference claimed is not recoverable for the reasons I have given.
Pool Safety Enforcement not attributable to Wenzel Wrongdoing
- Section 8 of the Form 40 stated the justification for urgent fencing work as:
Pending Council pool safety enforcement due to construction on your property adjacent to the shared boundary beside the garden shed.
- A Gold Coast City Council letter dated 11 April 2017 addressed to Mr and Mrs Fisher said that ‘the side boundary fence (sic) did not comply with the Queensland Development Code MP 3.4 Swimming Pool Barriers figure 10 (please find attached a copy of figure 10).’
- It is not clear which side boundary fence the Council was there referring to.
- Whichever it was, I do not accept Mr Fisher’s allegation that the non-compliance was caused by Mr and Mrs Wenzel demolishing a dividing fence. Again, there was no dividing fence on section 3 of the common boundary at the time.
- Mr and Mrs Fisher were required to erect a temporary pool fence at that stage. In that context, the need to construct a dividing fence which was a pool barrier on the common boundary of the properties was not truly urgent.
No Proof of Payment
- Attached to the Form 40 was a single page dated 2 October 2017, signed by Mr Fisher, entitled ‘Receipt for cost of pool fencing works’ describing the works as a 6 metre masonry concrete fence including footings and sandstone cladding and capping.
- Mr Fisher said in that attachment that he had received $7,840 from Mrs Fisher for the cost of the works ‘in reimbursement of credit card and other expenses.’ He did not produce any supporting documentary evidence and, in any event, financial adjustments between husband and wife do not prove the alleged outlay to a third party contractor for construction costs.
- Mr Fisher admitted that he personally had constructed the footings for the fence in issue. Presumably he would have paid for concrete. He produced no documentary evidence of that. He said that the wall was built by a contractor who he did not name and to whom he said he paid money in cash. He was not given an invoice or a receipt.
- Mr and Mrs Fisher had reporting and withholding tax payment obligations to the Australian Taxation Office in circumstances where the contractor did not supply an Australian Business Number. Neither Mr Fisher nor Mrs Fisher produced any evidence that they complied with those obligations.
- I do not accept that the alleged outlay has been proved on the balance of probabilities so the claim will be dismissed for that reason as well.
Alleged Adverse Effects of Unauthorised Fencing Work
- Mr and Mrs Wenzel said that the construction of the unauthorised block wall fence on section 3 of the common boundary affected the use and integrity of their approved shed. They reserved their rights and said that they would not contribute anything to the unauthorised wall.
- Mr Wenzel said that the footings unilaterally constructed by Mr Fisher have caused ingress of water into the boat shed which might also happen to their pool pavilion if a dividing fence were constructed on the common boundary for that section.
- I make no findings in that regard because this Tribunal has no jurisdiction to adjudicate a claim for alleged damage to a structure wholly on an adjoining property caused by unauthorised fencing work of a neighbour.
- That does not mean that the damaged neighbour is without remedy in appropriate circumstances, it is just that the remedy is not available in this Tribunal.
- I am satisfied that Mr Fisher’s construction of footings and a block wall fence on section 3 of the common boundary was not authorised as required by the Building Act 1975 (Qld) and that the required contribution notice was not given. Mr and Mrs Fisher have not made out their claim for a contribution in respect of section 3 of the common boundary and they have not proved the alleged outlay for construction cost.
- The claim will be dismissed.
3 - Form 2 Notice to Contribute 28 May 2018
Section 4 of the common boundary
- Mr and Mrs Fisher claim 100% of the costs to modify a dividing fence allegedly due to encroachment.
- The Form 2 – Notice to contribute for fencing work, dated 28 May 2018, signed by Mr and Mrs Fisher, issued pursuant to section 31 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and related to section 4 of the common boundary.
- Mr and Mrs Fisher did not produce any evidence of encroachment.
Aluminium Louvre Fencing Order Sought
- The Form 2 Notice proposed that Mr and Mrs Wenzel contribute $1,856.25 for the full cost of fencing work to be carried out on section 4 of the common boundary and that the fence be constructed of aluminium louvres. A quotation of A-Grade Aluminium dated 20 June 2017 for the manufacture and installation was attached.
- The proposed louvre fence specification was for a 50mm x 50mm frame with 65mm x 16mm vertical louvres spaced at approximately 40 mm gaps, 1 screen @ 1790mm W x 1700mm H (approximately) and 1 screen at 190mm W x 1500mm H (approximately) of all aluminium construction with a powder coated finish from a standard range of colours at a total cost of $1,856.25.
- In their email reply dated 6 June 2018, Mr and Mrs Wenzel said that they did not approve the removal of their aluminium security barrier on the revetment wall, that the existing barrier matched the existing barrier on the other (northern) side of their property, and that it had been in place for 25 years.
- They said that they had spent money getting the security barrier powder coated, that it was structurally sound and fit for purpose, and that they would not contribute to the cost of the proposed louvre structure.
- I accept that Mr and Mrs Wenzel had at some stage removed an opaque piece of Perspex attached to the security barrier which ran in the east/west direction between the waterside revetment wall and the pool shed wall.
- I accept that the security fence was taken down for powder coating and later re-installed without the Perspex. It is not part of the pool enclosure and is not a pool barrier.
- In issue was the exact position of the existing security barrier, whether some or all of it was on the common boundary for section 4, whether it was a dividing fence or a sufficient dividing fence without Perspex, whether it should be moved marginally to make it a dividing fence if it wasn’t on the common boundary, whether the aluminium louvre fence sought should be ordered in substitution, and who should pay the costs.
- However, it is now unnecessary for me to delve into the evidence from each side in order to make findings in those respects because a fencing order is no longer required for the following reasons.
- In or about April 2019, after I had reserved my decision on their application, Mr and Mrs Fisher erected on their property, 60 millimetres (or 2.36 inches) from, and parallel to, section 4 of the common boundary, the aluminium louvre fence referred to in the Form 2 Notice for which they were seeking a dividing fence order.
- Mr and Mrs Fisher said that they erected the aluminium louvre fence because screening shrubs in pots at the same location had mysteriously started dying and their privacy became impaired. Mr Fisher said that this had happened to another plant previously.
- Mr Fisher, who together with his wife bears the onus of proof, said that he believes that Mr Wenzel poisoned the plants with herbicide.
- Allegations in civil cases must be proved on the balance of probabilities. However, the common law requires that I feel an actual persuasion of the truth of the criminal wrongdoing by Mr Wenzel that Mr Fisher alleges, before so finding.
- Mr Fisher did not produce any evidence to ground the serious allegation made against Mr Wenzel.
- There is no evidence that Mr Fisher reported his suspicions to the police and made a complaint.
- There is no forensic evidence to prove the application of an herbicide, or that Mr Fisher applied it.
- Mere speculation and assertion of Mr Fisher’s belief of something untoward is not evidence.
- Though this Tribunal is not bound by the rules of evidence, allegations made by parties in this Tribunal must be proved by evidence.
- Absent evidence, there is no possibility of my being persuaded of the truth of what Mr Fisher has alleged against Mr Wenzel.
- I accept Mr and Mrs Wenzel’s evidence that they discovered that the aluminium louvre fence had been erected on the Fisher property when returning from a trip away during school holidays on 22 April 2019.
- They said that this materially changes ‘the matter’ and that the construction of the louvre fence could interfere with the impending QCAT decision ‘if not reported’ to the Tribunal.
- I accepted that submission and conducted a further hearing on 29 May 2019 in respect of that limited issue.
- The following is an excerpt from transcript of my discussion with Mr Fisher on the day.
ADJUDICATOR WALSH: Yes. So, the residual question is simply this. Is it appropriate for me with respect to this discrete part of the common boundary to make a dividing fence order or not given that that’s really the issue?
MR FISHER: I agree with you, Sir. I believe that it is not appropriate for you to make any order unless you wish to make an order on that white dividing fence, but it would seem pointless.
ADJUDICATOR WALSH: And it seems to me that to make a dividing fence order for the revetment boundary would probably be futile. It would probably lack utility.
Firstly, if there is to be a dividing fence order for that section, in order for the works to be carried out the louvre fence on your property would probably have to be removed …
MR FISHER: Correct.
ADJUDICATOR WALSH: … which I’m assuming you don’t want.
MR FISHER: It’s not a difficult job, but yes.
ADJUDICATOR WALSH: That’s the first point.
The second point is that you now have your privacy by that louvred fence on your property that previously you were wanting in terms of an order for a louvred fence on the common boundary.
Thirdly, so, related to that there’s no longer, it seems to me, any proper basis to order a fixing of Perspex or some other material to the white powder-coated fence on the Wenzel property. It would serve no purpose.
So, it is open to me in all of those circumstances – and I’m not deciding the point now – simply to refuse to order any dividing fence for this particular section.
MR FISHER: I agree with you wholeheartedly.
- One might speculate on what variety of causes, accidental or otherwise, may have affected the plants, but Mr and Mrs Fisher could (and should) have awaited the outcome of their application for fencing orders, regardless. The situation was not urgent. In fact, they didn’t.
- As Mr Fisher admitted, an order that the same fence be constructed on section 4 of the common boundary would lack utility and was no longer sought.
- The claim will be dismissed accordingly.
- Mr and Mrs Fisher’s Application filed with the Tribunal on 18 June 2018 has completely failed and will be dismissed on the merits and pursuant to sections 47(2) and 48(2) of the QCAT Act.
Abuse of Process, Vexation and Unnecessarily Disadvantaging Respondents
- Mr and Mrs Fisher know, from previous Tribunal decisions in applications against Mr and Mrs Wenzel, that there may be consequences for abuse of process, vexatious conduct and causing unnecessary disadvantage in the sense that those terms are used in the QCAT Act.
- They know that the only sanction available to the Tribunal, where Applicants in minor civil disputes transgress, is to dismiss or strike out the claim pursuant to sections 47(2) and 48(2) of the QCAT Act.
- They also know the duty that litigants owe to themselves and to their opponents and the Tribunal to take care in their dealings with Tribunal matters and to act in their own best interests.
- They are familiar with the consequences of not taking care in their dealings with the Tribunal.
- I accepted Mr Wenzel’s evidence in paragraph 35 of his affidavit sworn 23 March 2018, filed in Fisher v Wenzel (No 1)  QCAT 261, in which he said as follows:
In November 2017, Mr Fisher raised the issue of setting off the costs of building the fence against works elsewhere on his property and costs. I became frustrated at his constant games and cut him short. I stated “Ron, let’s cut to the chase. This is not about the fence, it’s about you not wanting to pay your half of the fence.” He replied “Yes that’s correct” and proceeded to say that if I let him build arches against my shed (in my property) and call them a dividing fence then he won’t go down the fence road. I interpret this to mean that he would not continue proceedings related to the fence if I allowed him to build arches against my shed. This is evident in his own email sent to us on the 29th November 2017. Attached and marked “G” is a copy of this email.
- I found that Mr Fisher’s intention in sending the email after the discussion to which Mr Wenzel referred, which Mr Fisher did not deny, was clear enough: Mr and Mrs Wenzel should resume discussion and accept his requirements concerning the several issues separate to the front section of the fence (then in dispute) previously discussed but still unresolved or face enforcement proceedings by Mr Fisher and his wife.
- I also found that Mr and Mrs Wenzel did not succumb to Mr Fisher’s demands, which included that they waive the benefit of the ordered contribution (from Mr and Mrs Fisher in MCDO 559/17), so Mr and Mrs Fisher carried out their threat by filing a renewal and/or reopening application on 16 February 2018 and that therein lay the ulterior, predominant, impermissible collateral purpose of Mr and Mrs Fisher bringing those proceedings. Doing so amounted to an abuse of process.
- I find that Mr and Mrs Fisher filed the present Application in furtherance of the same impermissible, ulterior purpose of trying to grind Mr and Mrs Wenzel into submission.
- Mr and Mrs Fisher filed their Application in this matter on 18 June 2018, before my decision and orders in Fisher v Wenzel (No 1)  QCAT 261 (MCDO 559/17) on 6 August 2018 but after the final hearing of their application for renewal/reopening on 24 April 2018 when I reserved my decision, rather than awaiting the outcome.
- The Forms 39, 40 and 2, on which the present application is predicated, were dated 29 May 2018, 27 May 2018 and 28 May 2018 respectively and were emailed to Mr and Mrs Wenzel on 4 June 2018, after the final hearing on 24 April 2018 but before my decision on 6 August 2018.
- The three quotations relied on by Mr and Mrs Fisher in support of their Form 39 Notice dated 29 May 2018, concerning sections 1 and 2 of the common boundary to which I referred earlier in this case, were dated 14 June 2017, 20 June 2017 and 25 June 2017.
- Mr and Mrs Fisher waited for 11 months before acting on them by issuing the Form 39 Notice (amongst others) in preparation for the present proceedings. They did not give any explanation for that delay and the quotations supporting the Form 39 Notice were never updated.
- I find that Mr and Mrs Fisher commenced the current proceedings in the Tribunal on 18 June 2018 because Mr and Mrs Wenzel persisted in refusing to waive their entitlement to be paid the contribution ordered in MCDO 559/17 on 6 August 2018 and because of the Mr and Mrs Wenzel’s refusal to allow the construction of the arches on their land against the pool shed.
- The only change in Mr and Mrs Fisher’s position between 29 November 2017, when Mr and Mrs Fisher sent their email in that regard, and now, with respect to the positioning of the arch fence (the arches) referred to by Mr Fisher, is that their focus shifted to positioning the pier and elliptical arch fence on section 1 of the common boundary beside the pool pavilion on the Wenzel property instead of section 3.
- Mr and Mrs Fisher have again pursued oppressive litigation without substantial merit, making claims that were bound to fail.
- In particular:
- (a)They sought an order for a proposed pier and arch fence on section 1 of the common boundary in the knowledge that it would not be a dividing fence and for which, on their own admission, they did not have the required Council approval;
- (b)The contribution claimed for the quoted cost of a block wall dividing fence was in respect of a dividing fence they never intended to build;
- (c)Mr Fisher realised their predicament when telling me at the hearing on 29 May 2019 that he and his wife had decided that their application for a ‘new wall’ on section 1 of the common boundary would be ‘counterproductive,’ though the claim was not withdrawn;
- (d)The painting and rendering claim for the pool pavilion wall on the Wenzel property was spurious for the reasons to which I referred;
- (e)The claim for reduction of the height of the nib wall was spurious for the reasons to which I have referred and was only withdrawn late in the proceedings without explanation; and
- (f)The claim for contribution to the block wall fence on section 3 of the common boundary was spurious for the reasons to which I have referred.
- The only arguable claim by Mr and Mrs Fisher related to section 4 of the common boundary but they pre-empted a decision of the Tribunal in that regard by building the aluminium louvre fence on their property so close to the common boundary that they no longer needed a fencing order.
- I find that Mr and Mrs Fisher pursued their application in the present case so as, again, to cause Mr and Mrs Wenzel unnecessary disadvantage in having to defend themselves against the spurious claims and allegations.
- They indulged themselves in a complex exercise in futility, detrimental primarily to Mr and Mrs Wenzel and incidentally to members of the general public waiting for their cases to be heard in the Tribunal. They have again wasted the Tribunal’s time and finite resources in the process.
- In Reihana v Beenleigh Show Society, referring to the decision of Justice Wilson (then President of the Tribunal) in The Pot Man Pty v Reaoch, Dr Forbes recently reiterated that parties’ own cases are not the centre of the legal universe; the Tribunal’s time and resources are limited, and there are other interests involved; there are others in the queue.
- I would respectfully add that, despite its accessibility and relative informality, the Tribunal is not a litigation playground, a forum where people may wage psychological war on others for ulterior purposes with impunity.
- The detriment to Mr and Mrs Wenzel in this case includes the time and inconvenience of needing to obtain legal advice, having to attend multiple hearings, having to prepare extensive affidavits and submissions, having to give oral evidence, and having to apply for further hearing of the case upon the new evidence discovered by Mr Wenzel in April 2019.
- The consequence will be that Mr and Mrs Fisher may not file any further application against Mr and Mrs Fisher in this Tribunal concerning fencing matters in Excalibur Court on The Sovereign Islands without applying for, and being granted, leave to do so by the President or the Deputy President of the Tribunal.
Wenzel Cost/Compensation Claim
- It is appropriate that I revisit the question of jurisdiction to award costs in circumstances such as these and elaborate on why it is not open to me to make the costs order which Mr and Mrs Wenzel seek against Mr and Mrs Fisher.
Sections 47 and 48 of the QCAT Act
- Section 47(2)(c) of the QCAT Act says that the Tribunal may make a costs order against the party bringing the proceedings to compensate another party for any reasonable costs, expenses, loss, inconvenience or embarrassment resulting from the proceeding or a part.
- Section 48(2) of the QCAT Act says that the Tribunal may make an order under section 102 against a party causing disadvantage to compensate another party for any reasonable costs incurred unnecessarily.
- In both instances, such order, amongst others including the dismissal of an application, may be made by a legally qualified member or an adjudicator.
Section 102 of the QCAT Act
- The legislature apparently has conferred the cost/compensation power with one hand and taken it back with the other in the case of minor civil disputes. Sections 47(2) and 48(2), which must be read in context, are qualified by section 102(2) of the QCAT Act.
- Section 102(2) of the QCAT Act says that the only costs the Tribunal may award against a party to a proceeding for a minor civil dispute (which this is) are the costs stated in the rules as costs that may be awarded under that section.
- Section 102(3)(a) says that is so even where a party to a proceeding unnecessarily disadvantages another party including (my emphasis) as mentioned in section 48(1)(a) to (g) of the QCAT Act, which subsections cover the situation amongst others where, as in the present case, unnecessary disadvantage has been caused by a party including by abuse of process and vexatiously conducting a proceeding.
- Rule 83 of the QCAT Rules also limits the Tribunal’s power to award costs in minor civil disputes other than a minor debt claim (such as in a dividing fence claim which is the case here) to ordering the other party to pay the applicant’s filing fee.
- Rule 84, in relation to a minor debt claim, which this application is not, limits the costs that may be recovered against a party to the proceeding to the prescribed filing fee, a fee for electronic filing, a service fee, and a business name or company search fee.
- In the result, I have no power to make an order in favour of Mr and Mrs Wenzel for costs or compensation.
- As I have said in an earlier case, only legislative amendment of the QCAT Act will remove that obstacle and provide real deterrence to litigants choosing to abuse the Tribunal’s process.
- In his affidavit sworn and filed on 7 May 2019, Mr Fisher referred, in paragraphs 1, 2, 3, 11 and 12, to at least 18 charges of contempt that he has now brought against Mr and Mrs Wenzel in this Tribunal, with others likely to follow, he said.
- I make clear that my decision in this case takes no account of the fact of those proceedings in another division of this Tribunal. They are not before me, they are not relevant to my decision in this case at this time, and I have not been influenced one way or another by the disclosure.
Question of Estoppel
- In Fisher v Wenzel (No 1)  261, I said that whether an Anshun estoppel may apply, preventing Mr and Mrs Fisher from separately litigating issues which could have been raised in the earlier proceedings, was unclear at that time and would be addressed when this Application was heard and determined.
- Mr and Mrs Fisher’s Application in the present case has failed entirely for other reasons so it is unnecessary for me to decide whether an estoppel applies.
- I order as follows:
- The time period for negotiation before filing an Application for a minor civil dispute – dividing fences is abridged to 17 June 2018.
- The claim for the cost of rendering and painting the pool pavilion wall on the Respondents property facing section 1 of the common boundary of the parties adjoining properties is dismissed.
- The claim and the application to amend the claim for contribution and an order for a special purpose pier and elliptical arch fence on section 1 of the common boundary of the parties adjoining properties is dismissed.
- The claim for the outlay for the invoiced costs of SLN Consulting Structural Engineers for a site inspection and report relating to the proposed pier and elliptical arch fence on section 1 of the common boundary of the parties adjoining properties is dismissed.
- The claim for a height reduction order and for the cost of reducing the height of the nib wall constructed on section 2 of the common boundary is dismissed.
- The claim for the cost of the block wall dividing fence constructed on section 3 of the common boundary of the parties adjoining properties is dismissed.
- The claim for an order for an aluminium louvre fence and for the cost of supply and construction of it on section 4 of the common boundary of the parties adjoining properties is dismissed.
- The Application for minor civil dispute – fencing claim filed on 18 June 2018 is dismissed on the merits and pursuant to sections 47(2) and 48(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
 Reported as Fisher v Wenzel & Anor  QCAT 456.
 Reported as Fisher v Wenzel (No. 1)  QCAT 261.
 Reported as Fisher v Wenzel (No. 2)  QCAT 298.
 Applicants’ submissions dated 18 September 2018 emailed to the Tribunal on 19 December 2018.
 As permitted by section 39(1)(a) of the Acts Interpretation Act 1954 (Qld) read with section 245XZ(5) of the Building Act 1975 (Qld) and section 92(5) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and also see section 245XZ(1) of the former Act and section 92(1) of the latter Act regarding the primary ways in which to give notice.
 Copy of all of which were filed with the minor civil dispute application on 18 June 2018.
 See section 31 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and sections 245XE and 245XN of the Building Act 1975 (Qld).
 Transcript 14 February 2019, T 1-17, lines 2 to 46 and T 1–18 line 1.
 T1-40, lines 15 to 35.
 T1-49, lines 12 to 46.
 At paragraph  of the decision.
 In McCain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, - (Brennan, Dawson, Toohey and McHugh JJ).
  QCA 37.
 Pollard & Anor v Fitzgibbon & Anor  QCATA 42, .
 Ibid -.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61(4).
 Ibid s 61(2).
 Transcript 14 February 2019, T 1-3 lines 20 to 29, T 1-4 lines 3 to 21 and lines 41 to 46, and T1-5 lines 1 to 10.
 T 1-4 lines 3 to 40.
 T 1-5 lines 11 to 26.
 T 1-5 lines 19 to 26.
 T 1-5 lines 39 to 46.
 Published pursuant to section 245XL(1) of the Building Act 1975 (Qld).
 Transcript 26 October 2018, T2-76, lines 24 to 46 and T2-77, lines 1 to 4.
 110 mm at the western end and 130 mm (5.118 inches) at the eastern end of the pavilion wall; see paragraph  the affidavit of Christian Wenzel sworn 11 October 2018.
 See the Building Act 1975 (Qld), section 245XA Definitions for part 2A and the definition of dividing fence which adopts the definition in section 12 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), viz. a fence on the common boundary of adjoining lands unless within the exception in section 12(2)(a) and (b).
 Transcript 26 October 2018, T2-80 lines 1 to 16.
 Transcript 29 May 2019, T1-8 lines 15 to 23.
 Transcript 14 February 2019, T1-9, lines 10 to 25.
 T1-14, lines 1 to 20.
 Ibid lines 22 to 46.
 Affidavit of Christian Wenzel sworn 11 October 2018, paragraphs  - .
 Building Act 1975 (Qld), s 245XQ(1)(a).
 Section 12(1) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and the definition of dividing fence in Schedule 2 of the Building Act 1975 (Qld) which adopts that section.
 Ibid s 12(2).
 QDC, part MP3.4; Building Act 1975 (Qld) s 231D.
 Fisher v Wenzel & Anor  QCAT 456, ,  and see the authority there referred to.
 Affidavit of Christian Wenzel sworn 11 October 2018, paragraph .
 Transcript 13 July 2018, T1-35, lines 1 to 12.
 T 1-45, lines 2 to 10.
 Ibid lines 10 to 12.
 Ibid lines 17 to 46.
 Affidavit of Ronald Eric Fisher sworn 19 December 2018, paragraph .
 Building Act 1975 (Qld), s 245XN(2) and (3).
 See section 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and rule 83 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).
 Affidavit of Ronald Eric Fisher sworn 19 December 2018, paragraph .
 Again, see s 245XA of the Building Act 1975 (Qld).
 See for example paragraph  of Mr Fisher’s affidavit sworn 19 December 2018 with reference to section 245XB of the Building Act 1975 (Qld).
 Building Act 1975 (Qld), s 245XE (1), s 245XE (2), s 245XE (3) and s 245XE (4).
 See Fisher v Wenzel & Anor  QCAT 456, , .
 Ibid paragraph 16.
 See exhibit J to the affidavit of Christian Wenzel sworn 11 October 2018 referred to in paragraph 16 of the affidavit.
 Building Act 1975 (Qld), s 231B(1).
 Referred to in paragraphs  to  of this decision.
 See Fisher v Wenzel  QCAT 456,  – .
 Transcript 2 March 2016, T1-42 lines 30 to 39.
 Ibid T1-59 lines 41 to 46 and T1-60 lines 1 to 4.
 Ibid T1-63, lines 5 to 21.
 Transcript 11 March 2014, T1-12, lines 10 to 15.
 Ibid T1-18, lines 5 to 29.
 Transcript 14 February 2019, T1-8, lines 1 to 35.
 Again, see paragraphs  to  of this decision and Fisher v Wenzel  QCAT 456,  – .
 Transcript 11 March 2014, T1-3 lines 1 to 46, T1-4, lines 1 to 46, T1-5, lines 1 to 46, and T1-6, lines 1 to 14.
 Fisher v Wenzel  QCAT, , , , , ,  and .
 Section 232(1)(a) and (b) of the Building Act 1975 (Qld); QDC, part MP3.4 Swimming Pool Barriers, The Pool Safety Standard, Schedule 1 – Modifications to the Standard, 3(a) and (b) and 4(a), (b) and (c).
 Affidavit of Christian Wenzel sworn 11 October 2018 at paragraphs  and ; Affidavit of Ronald Fisher sworn 12 July 2018, paragraph .
 Transcript 26 October 2018, T 2-43 lines 30 to 34.
 Ibid, line 43.
 T 2-44 line 3.
 Ibid, line 38.
 See s 245XT, Building Act 1975 (Qld).
 See exhibit A to the Affidavit of Ronald Fisher sworn 17 April 2018 filed in Application Q559/17.
 Affidavit of Ronald Fisher sworn 19 October 2018, .
 Transcript 14 February 2019, T 1-46, lines 36 to 39.
 T 1-47, lines 21 to 25.
 Ibid, lines 29 to 32 and 40 to 44.
 Taxation Ruling TR 2002/9; section 12-190 of Part 2-5 (the PAYG provisions) of Schedule 1 to the Taxation Administration Act 1953 (Qld) (‘TAA 1953’).
 Transcript 23 October 2018, T 2-91 lines 9 to 25.
 Transcript 29 May 2019, T 1-3 lines 32 to 46 and T1-4 lines 1 to 46.
 Affidavit of Ronald Fisher sworn 7 May 2019, paragraphs  and .
 Affidavit of Ronald Fisher sworn 7 May 2019, paragraph .
 The test in Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336 (30 June 1938).
 Statement of Mr and Mrs Wenzel dated 7 May 2019, paragraph 3(c).
 Ibid paragraph 3(h).
 T1-5 lines 15 to 18.
 T1-5 lines 19 to 21.
 T1-7 lines 15 to 19 and see s 245XO(3) of the Building Act 1975 (Qld).
 T1-7 line 21.
 T1-7 line 23.
 T1-7 line 25.
 T1-7 lines 27 to 34.
 T1-7 line 36.
 Fisher v Wenzel & Anor  QCAT 456, -.
 Fisher v Wenzel (No 1)  QCAT 261, .
 Ibid .
 Ibid .
 See paragraph .
 See paragraph .
 See paragraph .
  QCATA 91.
  QCATA 318.
 By operation of s 49 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
 Submissions dated 12 March 2019, paragraph 2(b).
 See Fisher v Wenzel & Anor  QCAT 456, -.
 Fisher v Wenzel & Anor  QCAT 456, .
  QCAT 261, .
- Published Case Name:
Ronald Eric Fisher and Maree Fisher v Christian Edwin Wenzel and Karina Lee Wenzel
- Shortened Case Name:
Fisher v Wenzel
 QCAT 295
27 Sep 2019