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  • Unreported Judgment

Aurisch v Fong & Anor

 

[2020] QCAT 380

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Aurisch v Fong & Anor [2020] QCAT 380

PARTIES:

LYNETTE AURISCH

(applicant)

v

JOHN FONG

(first respondent)

REINHARD ERB

(second respondent)

APPLICATION NO/S:

MCDO0603-20

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

10 September 2020

HEARING DATE:

1 July 2020

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Lember

ORDERS:

Application is dismissed.

CATCHWORDS:

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where fencing works urgent – where only three days’ notice to fence given

Building Act 1975 (Qld), s 245XD, s 245XH, s 245XK, s 245XM, s 245XQ

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 9, s 12, s 20, s 28, s 31, s 32, s 35

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

First Respondent:

Second Respondent:

Self-represented

Self-represented

REASONS FOR DECISION

Background

  1. [1]
    On 25 May 2020 the applicant, Ms Aurisch, filed an application seeking contribution - on an urgent basis - from her rear boundary neighbours, Mr Erb and Mr Fong respectively, of $732.00 each towards a 1.8m high treated pine dividing fence erected on 17 March 2020.
  2. [2]
    Ms Aurisch resides at No 8 ABC Street[1] and her rear boundary is almost evenly divided between the rear boundaries of the properties at 70 XYZ Street (owned by Mr and Mrs Erb) and 72 XYZ Street (owned by Mr Fong).
  3. [3]
    Ms Aurisch’s property enjoys a swimming pool situated in a corner of her rear yard. That part of the dividing fence that she shares with Mr Fong forms part of her pool fence. However, the part of the dividing fence that separates Ms Aurisch’s property from Mr Erb’s property is not a pool fence.
  4. [4]
    To her application Ms Aurisch attached:
    1. (a)
      evidence of her payment to Affordance Fencing Gold Coast of the amount of $2,197.50; and
    2. (b)
      a quote from Affordable Fencing Gold Coast dated 18 February 2020 being $1,997.50 for 23.5m of timber fencing “to match side fence” and $200.00 for fence disposal; and
    3. (c)
      three photographs of what she says was the dilapidated existing fence that required urgent replacement.
  1. [5]
    The applicant says she gave a Notice to Contribute for Urgent Fence Repair (NTC) by delivering the same to the letterbox of each of her neighbours on Friday 13 March 2020.
  2. [6]
    The fencing work was undertaken on Tuesday 17 March 2020 and paid for in full by the applicant on 19 March 2020.
  3. [7]
    Mr Fong says he never received the NTC.
  4. [8]
    Mr Erb says he only saw the NTC when he checked his letterbox on the evening of Monday, 16 March 2020. He says he attempted to call the applicant but did not receive a call back.
  5. [9]
    The fencing work therefore proceeded at the direction of the applicant on 17 March 2020 without the consent of or feedback from either respondent.
  6. [10]
    The fence appears to have been constructed just inside the property boundary on Ms Aurisch’s side, as evidenced in photographs provided of the Besser blocks and posts that formed the previous boundary fence, rather than a survey plan.
  7. [11]
    Mr Erb and Mr Fong say that they never received payment details or an invoice for the final work undertaken prior to Ms Aurisch filing her application.
  1. [12]
    The NTC was not tendered by Ms Aurisch in evidence at the hearing, was not attached to her application and was not subsequently submitted to the Tribunal.
  2. [13]
    The applicant nonetheless seeks a three-way contribution to the new fence in equal shares.
  3. [14]
    Each respondent points out that the applicant enjoys the full length of the fence constructed, whereas they only enjoy one-half respectively. In those circumstances they say, if they are responsible at all – which they dispute – the proportions should be 50% to the applicant and 25% each to the respondents.
  4. [15]
    The Tribunal agrees that, if the respondents are responsible for any contribution, it should be in those proportions, not the proportions submitted by the applicant.
  5. [16]
    It was not disputed in submissions nor in the hearing that the existing fence needed repair.
  6. [17]
    However, both respondents object to contributing to the cost to fence because of ineffective notice they were given of Ms Aurisch’s intention to fence.
  7. [18]
    Mr Fong also objects to the quality/workmanship of the new fence, citing “large gaps, uneven palings, uneven rails, no prep-work on the bas [sic] so palings are cut to suit the uneven ground”.[2]
  8. [19]
    Mr Fong also noted that the old fence was not removed, and he and Mr Erb tendered photographic evidence that rubbish from the fencing work undertaken was left on their properties by the fencing contractor.

Jurisdiction

  1. [20]
    The Tribunal’s jurisdiction derives from the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the NDA) for dividing fences and from the Building Act 1975 (Qld) (Building Act) where a fence is a pool barrier.[3]
  2. [21]
    Therefore, the NDA applies to the applicant’s boundary fence with Mr Erb’s property and the Building Act applies to the applicant’s boundary fence with Mr Fong’s property.
  3. [22]
    The NDA relevantly provides as follows (emphasis added):

12 Meaning of dividing fence

  1. (1)
    A dividing fence means a fence on the common boundary of adjoining lands

20 Liability for fencing work

  1. (1)
    If there is no sufficient dividing fence between 2 parcels of land consisting of adjoining land, an adjoining owner is liable to contribute to carrying out fencing work for a sufficient dividing fence.

  1. (3)
    However, other than for urgent fencing work, subsection (1) is only enforceable if—
  1. (a)
    the adjoining owners have agreed under this chapter about carrying out the fencing work; or
  1. (b)
    QCAT has ordered that the fencing work be carried out.
  1. (4)
    To remove any doubt, it is declared that subsection (1) applies even if—
  1. (a)
    there is already a dividing fence other than a sufficient dividing fence; or
  1. (b)
    one or both parcels of land are vacant land.

28 Urgent fencing work

  1. (1)
    This section applies if all or part of a dividing fence is damaged or destroyed and, in the circumstances, urgent fencing work is required.
  1. (2)
    If it is impracticable to give a notice under section 31, an owner may, without giving the notice, carry out the fencing work required to restore the dividing fence to a reasonable standard, having regard to its state before the damage or destruction.
  1. [23]
    Part 4 of the NDA sets out the process to follow for having adjoining neighbours contribute to fencing work (emphasis added):

31 Notice to contribute for fencing work

  1. (1)
    An owner may require the adjoining owner to contribute, under this chapter, to the carrying out of fencing work for a dividing fence by giving a notice to the adjoining owner.
  1. (2)
    The notice must be in the approved form and state the following—
  1. (a)
    a description of the land on which the fencing work is proposed to be carried out and, if the fencing work is to construct or replace a dividing fence, the line on which it is proposed to construct or replace the fence;
  1. (b)
    the type of fencing work proposed to be carried out;
  1. (c)
    the estimated cost of the fencing work to be carried out including the cost of labour and materials.
  1. (3)
    The notice must be accompanied by a copy of at least 1 written quotation stating the estimated cost of the fencing work to be carried out.
  1. (4)
    The owner giving the notice may propose that any cost of the fencing work to be carried out is to be borne other than in equal proportions.
  1. (5)
    For subsection (4), the notice must state the proposed proportions.
  1. (6)
    If, within 1 month after the notice is given, the adjoining owners have not agreed about the proposed fencing work to be carried out and their contributions to the proposed fencing work, either adjoining owner may, within 2 months after the notice is given, apply to QCAT for an order under section 35.

  1. (7)
    Until the adjoining owners have agreed about the proposed fencing work to be carried out and their contributions to the proposed fencing work, neither owner may carry out fencing work, or arrange to have fencing work carried out, for the dividing fence other than for urgent fencing work.

32 Notice to contribute for urgent fencing work

  1. (1)
    This section applies if an owner carried out fencing work under section 28.
  1. (2)
    The owner may require the adjoining owner to contribute, under this chapter, to any reasonable cost incurred for the fencing work by giving a notice to the adjoining owner.
  1. (3)
    The notice must be in the approved form and state the following—
  1. (a)
    a description of the land on which the fencing work was carried out;
  1. (b)
    the reason urgent fencing work was required;
  1. (c)
    the type of fencing work carried out;
  1. (d)
    any cost incurred for the fencing work and a receipt for the cost.
  1. (4)
    The owner giving the notice may propose that the contribution to carrying out the fencing work is to be borne other than in equal proportions.
  1. (5)
    For subsection (4), the notice must state the proposed proportions.
  1. (6)
    If, within 1 month after the notice is given, the adjoining owners have not agreed about their contributions to carrying out the fencing work, either adjoining owner may, within 2 months after the notice is given, apply to QCAT for an order under section 35.
  1. [24]
    Similarly, the Building Act relevantly provides:

245XD Right to alter or replace existing dividing fence for the purpose of a pool barrier

  1. (1)
    This section applies if—
  1. (a)
    there is a dividing fence (the existing dividing fence) between 2 parcels of adjoining land; and
  1. (b)
    there is, or is proposed to be, a regulated pool on only 1 of the parcels that will use all or part of the dividing fence to form part of the barrier for the regulated pool.
  1. (2)
    The pool owner may alter or replace all or part of the existing dividing fence if—
  1. (a)
    the pool owner and adjoining owner have agreed about carrying out the fencing work; or
  1. (b)
    QCAT has ordered that the fencing work be carried out.
  1. (3)
    The pool owner may alter or replace all or part of the existing dividing fence without the adjoining owner having agreed about carrying out the fencing work if—
  1. (a)
    the new fence will, when complete, form part of the barrier for the regulated pool that complies with the pool safety standard; and
  1. (b)
    the new fence will, when complete, be a sufficient dividing fence; and
  1. (c)
    the new fence is constructed using similar materials and colours to those of the existing dividing fence if the use of the materials would not prevent compliance with paragraph (a) and (b); and

  1. (d)
    the pool owner gives the adjoining owner a notice of proposed fencing work at least 14 days before the proposed fencing work is carried out.

245XH Apportioning cost of constructing etc. dividing fence forming part of a pool barrier

  1. (1)
    This section applies to carrying out relevant fencing work in relation to a dividing fence forming part of a pool barrier along the common boundary between 2 parcels of adjoining land.
  1. (2)
    If the dividing fence forms part of a barrier for a regulated pool on only 1 parcel of adjoining land—
  1. (a)
    to the extent the work is attributable to a pool owner complying with section 232 (1), the cost of carrying out the work is to be borne solely by the pool owner; …

245XK Urgent fencing work

  1. (1)
    This section applies if all or part of a dividing fence forming part of a pool barrier is damaged or destroyed and, in the circumstances, urgent fencing work is required.
  1. (2)
    If it is impracticable to give a notice under section 245XM, an owner may, without giving the notice, carry out the fencing work required to restore the dividing fence to a reasonable standard, having regard to its state before the damage or destruction.

  1. (3)
    The cause of the damage or destruction does not affect the operation of this section.
  1. (4)
    However, if the dividing fence is damaged or destroyed in a way that renders a regulated pool, that uses the fence to form part of its pool barrier, noncompliant with the pool safety standard—
  1. (a)
    urgent fencing work is taken to be required; and
  1. (b)
    it is taken to be impracticable to give notice under section 245XM.
  1. [25]
    Section 35 of the NDA (corresponding with section 245XQ of the Building Act) sets out the orders that the Tribunal may make upon an application in relation to fencing work for a dividing fence.

Findings

Mr Erb’s property – the NDA

  1. [26]
    In making fencing orders in circumstances where the applicant proceeded with the works without first obtaining either the agreement of her adjoining neighbour or an order of the Tribunal, then it is clear that the Tribunal must be satisfied:
    1. (a)
      that the works needed were urgent; and
    2. (b)
      that it was impracticable to give a notice to contribute; and
    3. (c)
      that notice was instead given under section 32.
  2. [27]
    With respect to urgency, Ms Aurisch obtained her fencing quote on 18 February 2020, some four weeks before the fencing works commenced. This indicates that the matter was not, in fact, urgent.
  3. [28]
    Even if the matter was urgent, there were ample means and opportunity in those four weeks for Ms Aurisch to provide notice to Mr Erb of her intention to fence. Ms Aurisch did not tender any evidence, nor did she make any submissions that it was impracticable to give Mr Erb notice and I find that it was not impracticable on that basis and that notice ought to have been given.
  4. [29]
    In any event, it is not open to the Tribunal to conclude that a notice to contribute was given to Mr Erb in the approved form under section 32 of the NDA because a copy of it was not provided to the Tribunal to examine.
  5. [30]
    On those bases, to the extent that the application seeks contribution from Mr Erb, that application must be dismissed.

Mr Fong’s property – the Building Act

  1. [31]
    In making fencing orders in circumstances where the applicant (a pool owner) proceeded with fencing works without first obtaining either the agreement of her adjoining neighbour (a non-pool owner) or an order of the Tribunal, then it is clear that the Tribunal must be satisfied:
    1. (a)
      that urgent fencing work was required; and
    2. (b)
      that it was impracticable to give a notice to contribute under section 245XM.
  2. [32]
    Urgent fencing is taken to be required and it is taken to be impracticable to give notice under section 245XM if the dividing fence is damaged or destroyed in a way that renders a regulated pool, that uses the fence to form part of its pool barrier, noncompliant with the pool safety standard.
  3. [33]
    The Tribunal finds that urgent fencing was required to render Ms Aurisch’s pool compliant with the pool safety standard and as such it was impracticable for Ms Aurisch to give notice to Mr Fong by virtue of section 245XK(4) of the Building Act.
  4. [34]
    As to contributions, applying section 245XH(2) of the Building Act, because the dividing fence forms part of a barrier for a regulated pool on only one parcel of adjoining land, the cost of carrying out the work is to be borne solely by the pool owner; namely, by Ms Aurisch.
  5. [35]
    On that basis, the application by Ms Aurisch for contribution by Mr Fong must also be dismissed.

Orders

  1. [36]
    For the reasons given, the order of the Tribunal is that the application is dismissed.

Footnotes

[1]Address concealed to protect the privacy of parties.

[2]Written submissions of Mr Fong dated 23 June 2020.

[3]Section 9 of the NDA.

Close

Editorial Notes

  • Published Case Name:

    Aurisch v Fong & Anor

  • Shortened Case Name:

    Aurisch v Fong & Anor

  • MNC:

    [2020] QCAT 380

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Lember

  • Date:

    10 Sep 2020

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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