Fisher v Wenzel[2016] QCAT 456

REASONS FOR DECISION

Introduction

Dividing fence disputes - uniquely inflammatory

1. [1]
   Of the gamut of claims, which regularly come before the Queensland Civil and Administrative Tribunal (‘Tribunal’) in its minor civil dispute jurisdiction, dividing fence disputes are often the most bitter and divisive.

Why so

2. [2]
   Suburban gates, fences, and boundaries demarcate the sovereign castles that are peoples’ homes, the perceived violation of which not infrequently provokes hostility and conflict between otherwise reasonable, peace loving people.

Resolution encouraged

3. [3]
   Neither the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Dividing Fences Act’) nor the Building Act 1975 (Qld) (‘the Building Act’), insofar as they relate to dividing fence disputes, prescribe compulsory conciliation as a jurisdictional precondition to filing a Dividing Fences Application in the Tribunal once a dispute has arisen.^[1]
4. [4]
   Adjoining landowners are only ‘encouraged’ to attempt to resolve issues about fencing work to avoid a dispute arising.^[2] Ignoring the encouragement carries no consequence; litigants can do so with impunity.

Conciliation not required

5. [5]
   The Tribunal’s involvement in this case might have been entirely avoided had the parties been compelled to conciliate as an essential condition of litigation in the Tribunal which they are not.
6. [6]
   In contrast, conciliation is a threshold requirement for Tribunal jurisdiction in building and non-urgent residential tenancy disputes. Jurisdiction is not enlivened until the conciliation process ends.
7. [7]
   In the case of residential tenancy disputes, the Residential Tenancies Authority (Queensland) resolved 80.2% of all tenancy disputes through compulsory pre litigation conciliation and 76.2% of those within 28 days in 2014 – 2015. It assisted 5,644 clients with self-resolution strategies and 83% of those found resolution as well, thus completely avoiding QCAT involvement.^[3]

Mediation available

8. [8]
   The Queensland Government, through its Dispute Resolution Branch, provides free mediation services to intending litigants. That resource is appropriately available in dividing fence cases amongst others.
9. [9]
   With minor amendment to the Dividing Fences Act and the Building Act, mediation could be made a prerequisite to the Tribunal’s jurisdiction to entertain a claim after a dispute has arisen.

Consequences of failure to conciliate

10. [10]
    Mr Fisher, the Applicant in this case, and Mr and Mrs Wenzel, the Respondents, between them have so far paid legal fees of approximately $12,000 in connection with this dispute. That amount is more than the likely cost of construction of an entirely new dividing fence that, even today, they still do not have.
11. [11]
    Monetary consequences aside, this conflict has consumed the parties’ lives for over two years, adversely impacting their health, wellbeing and the quiet and peaceful enjoyment of their multi-million dollar properties.
12. [12]
    Mr and Mrs Wenzel are reluctant to complete construction and redevelopment on their property without finality in this litigation. Mr Fisher and his wife^[4] are reluctant to rehabilitate their northern waterfront garden and pool area until they are vindicated in their complaints.
13. [13]
    In the result, the parties are unable to get on with their lives while the dispute remains unresolved.

Facts

14. [14]
    Mr Fisher together with Mrs Fisher, and Mr and Mrs Wenzel, respectively are next-door neighbours in a prestigious waterfront estate on the Gold Coast. The adjoining Fisher and Wenzel properties have a common boundary running from street to waterfront in a west to east direction. There is a swimming pool on each property.
15. [15]
    The Fishers have held registered freehold title to their property for far longer than the Wenzels. Mr and Mrs Wenzel bought their property in August 2011 and had it surveyed in July 2012. The survey revealed that structures on Mr and Mrs Fisher’s property traversed the common boundary and encroached on Mr and Mrs Wenzel’s land.
16. [16]
    Mr and Mrs Wenzel’s surveyors wrote to Mr and Mrs Fisher on 10 July 2012^[5] giving encroachment notice. The encroachments referred to in the surveyors’ letter included the capping of a feature wall on the Fisher property, which extended onto the Wenzel property by up to 220mm and the capping of a curved feature wall by up to 320mm. The centre of a ‘dividing block fence along the common boundary’ was located 245mm^[6] inside the Wenzel property.^[7]
17. [17]
    The surveyors’ description of the block fence as ‘dividing’ and ‘along the common boundary’ was unfortunate. Although in close proximity, the block fence did not in fact stand on the common boundary of the adjoining properties and was therefore not a dividing fence in the sense defined in the legislation which applies in this case. Rather, the block fence ran parallel to the common boundary and stood wholly upon the Wenzel land,^[8] as the surveyors’ letter acknowledged.
18. [18]
    On 16 March 2013, before any issues had arisen between the neighbours, Mr Wenzel visited Mr and Mrs Fisher at their home and showed them the building plans for prospective architecturally designed new buildings and structures^[9] on the Wenzel property^[10] which they planned to build.
19. [19]
    Mr Fisher signed a Neighbours Comment Form after the meeting stating that he had no objection to the proposed development referred to in various drawing numbers recorded in the document^[11] but Mrs Fisher, who is joint registered owner^[12] and also attended the meeting, did not. There being no evidence of her dissent,^[13] I find that Mrs Fisher acquiesced in Mr Fisher’s implicit approval of the proposed Wenzel redevelopment.
20. [20]
    Forthcoming construction as was shown on the plans^[14] and later approved amended plans^[15] would inevitably involve removal of all encroachments including the existing block fence^[16] wholly on the Wenzel property,^[17] and construction in their place of structures including a garden shed and a dining pavilion.
21. [21]
    Both the garden shed and pool pavilion were to be zero lot line structures^[18] within the set back area, i.e. not on the common boundary but just inside it, and that is where they were later constructed.^[19]
22. [22]
    Additional encroachments on the Wenzel property were later identified in a letter dated 29 January 2014^[20] from Mr and Mrs Wenzel’s solicitors to Mr and Mrs Fisher. The letter demanded that the encroachments be removed by Mr Fisher or they would be demolished by Mr and Mrs Wenzel. The encroachments consisted of:

    1. A clothes line and brickwork extending off a fence approximately 100mm inside the Wenzel property;
    2. An air-conditioning compressor;
    3. The outside edge of an adjoining fence pillar approximately 100mm inside the Wenzel property;
    4. A water fountain approximately 250mm inside the Wenzel property;
    5. Half of each round column holding up arches;
    6. Bricking up of a brick/aluminium balustrade;
    7. 3m of fence erected by Mr Fisher at the front of the Wenzel property;
    8. Various columns and arches exceeding 3m in height; and
    9. A pool filter and associated fittings.
23. [23]
    I find that the plans as presented to Mr and Mrs Fisher at the meeting on 16 March 2013 did not show the extent of structures and encroachments requiring removal and nor were they required to do so.
24. [24]
    Pertinently, however, the plans did show that the back or southern walls of the garden shed and dining pavilion^[21] would be situated wholly within the Wenzel property though parallel with, and close to, the common boundary line running toward the waterfront side of the adjoining properties.

Catalyst for dispute

25. [25]
    Mr and Mrs Fisher had evidently not realised the extent to which structures on their property identified in correspondence from the surveyors and solicitors for Mr and Mrs Wenzel traversed the common boundary and encroached on the Wenzel land.
26. [26]
    It also seems to me that Mr and Mrs Fisher had not realised the extent to which demolition and construction works on the Wenzel property would negatively impact their facilities, which included a pool, and the architectural aesthetics of the northerly aspect of the their waterside garden area.^[22]
27. [27]
    This realisation, when it dawned, catalysed the dispute, which has now been litigated twice in this Tribunal by Mr Fisher.

The first QCAT application

28. [28]
    Mr Fisher (only) filed a Form 53 Application for minor civil dispute – dividing fences^[23] (‘the first application’) together with a Form 41 Application for interim order with the Tribunal on 17 January 2014 seeking an order preventing the construction or demolition of, or tampering with, a dividing fence of which a pool fence forms part without authorisation.^[24]

Interim Orders

29. [29]
    The matter came before a Tribunal Adjudicator on 24 January 2014. He ordered that Mrs Wenzel’s name in the title to the proceeding be amended and that the Application filed on 17 January 2014 be dismissed if not relisted upon the written request of Mr Fisher on or by 14 February 2014.
30. [30]
    I infer that the Adjudicator was optimistic the parties would resolve the dispute by themselves but that did not happen.

Amendment of the first application

31. [31]
    The guillotine effect of the Adjudicator’s order was avoided when Mr Fisher emailed the Registrar, Southport Courthouse, on 10 February 2014 asking that the case be relisted for hearing and that his claim be amended to include the following further orders:

…reinstatement of ... a fence/dividing wall that has been demolished adjacent (sic) to the side boundary line^[25] ... and that the Respondents ... not engage in further demolition (or) alteration of the dividing fence without permission from the Applicant except where approved plans for any structure require such demolition (or) alteration.^[26]

Adjacent fence/dividing wall on alleged occupational boundary

32. [32]
    At the hearing of the first application, Mr Fisher referred to this fence/dividing wall demolished adjacent to the boundary line as being on ‘... the occupational boundary versus the survey boundary ... when you’ve had possession of use of that boundary for more than 12 years  ...’. and went on to say that ‘... but after legal advice I’ve not gone down that track’.^[27]
33. [33]
    This quotation evidences Mr Fisher’s knowledge that the fence in question was not in fact a dividing fence on the common boundary of the adjoining properties according to the title plan.

Adverse possession claim not made

34. [34]
    The quotation also evidences the fact that Mr Fisher consciously elected to make a dividing fence application in the Tribunal rather than seeking orders for title by adverse possession and realignment of the registered common boundary to the occupational boundary in a Court of competent jurisdiction.

Occupational boundary therefore irrelevant

35. [35]
    The occupational boundary to which Mr Fisher referred therefore has no relevance in this case. The fence formerly on what he described as the occupational boundary has largely ceased to be in existence in any event. Most of it was demolished to make way for the construction works that were carried out on the Wenzel property until work came to a halt when the first application was served.

Decision in the first application

36. [36]
    The Adjudicator who made the interim orders on 24 January 2014 also heard and determined the first application at a final hearing on 11 March 2014.
37. [37]
    Though he had the power to do so,^[28] the Adjudicator did not formally order amendment of the claim to include the orders sought in the Applicant’s email to the Southport Courthouse dated 10 February 2014. In isolation, that was merely an irregularity and nothing turns on it for present purposes.
38. [38]
    However, the Adjudicator apparently took account of Mr Fisher’s email seeking amendment of the claim because he made the following orders in terms far broader than those originally sought:

    1. Mr and Mrs Wenzel arrange the erection and completion within 6 weeks of a new dividing fence solely at their cost on the boundary line between the properties in conjunction with approved building works on their side in accordance with the approved plans;
    2. Mr Fisher remove any encroachments within 14 days; and
    3. Mr Fisher not have any construction or attachments against construction of Mr and Mrs Wenzel and the new dividing fence.^[29]

Jurisdiction

39. [39]
    Relevant questions arise concerning the first application and orders:

    1. Did the Tribunal have jurisdiction to entertain the first application?
    2. Did the Adjudicator have power to make the first orders or were they a nullity?
    3. Alternatively, in the words of the High Court in Berowra Holdings Pty Ltd v Gordon,^[30] were the first orders ‘... made within power but improperly, in which case, until set aside by a superior court ... (they had) to be obeyed?’^[31]

Status of the first orders

40. [40]
    The Tribunal is a creature of statute, established by the QCAT Act and is of limited jurisdiction. Orders made by a Tribunal of limited jurisdiction without power are not merely irregular, they are a nullity.^[32] I must therefore consider the status of the Adjudicator’s decision on 11 March 2014.

Binding or not

41. [41]
    It matters not that I sit as a different Adjudicator at first instance in the present case because, to paraphrase the words of Samuels AP in United Telecasters Sydney Ltd v Hardy^[33] quoted with approval by the High Court of Australia in Pelechowski v The Registrar, Court of Appeal,^[34] an order which is a complete nullity binds no-one.

Materiality

42. [42]
    Whether or not the first decision is a nullity is material to whether any of the relief claimed by Mr Fisher in the present case is available. It is also material to whether there is an estoppel by record^[35] created by the first decision and whether an Anshun estoppel arises in the present proceeding.
43. [43]
    Incidental questions arising include whether Mr Fisher has abused the Tribunal’s process and has caused Mr and Mrs Wenzel unnecessary disadvantage, which I will revisit later.

First orders a nullity

44. [44]
    Having read the transcript of the Tribunal hearing of the first application on 11 March 2014 along with the affidavits and documents forming part of the Tribunal file to which I may have regard,^[36] I find for purposes of the present proceedings that the Tribunal did not have jurisdiction in the first application.
45. [45]
    The Adjudicator acted beyond his power and the first orders are a nullity for the following reasons.

No notice to contribute

46. [46]
    The Tribunal’s jurisdiction and the Adjudicator’s power to make dividing fence orders depended fundamentally on Mr and Mrs Fisher first giving Mr and Mrs Wenzel a compliant Notice to Contribute for Fencing Work as required by s 31 of the Dividing Fences Act or an equivalent Form 39 Notice under s 245XM of the Building Act insofar as any proposed fencing work for a swimming pool barrier was concerned.
47. [47]
    Section 31(6) of the Dividing Fences Act,^[37] properly construed, requires that a month have first elapsed after service of a notice to contribute with no agreement about the proposed fencing work or contributions before applying to the Tribunal within the following month. The Tribunal has no jurisdiction otherwise.
48. [48]
    Analogous provisions of the Building Act as relate to pool barrier fencing are to similar effect with due alteration of detail and all the provisions are prescriptive. That is, the Tribunal has no power to condone non-compliance.
49. [49]
    Mr and Mrs Fisher did not give the Respondents a Notice to Contribute at any stage. It is clear from the transcript of the final hearing on 11 March 2014 that the Adjudicator did not consider that omission and its jurisdictional implications and he did not give reasons for making the first orders.
50. [50]
    Because a contribution notice was the statutory prerequisite to the Tribunal’s jurisdiction and was not given, the Adjudicator had no power to make the first orders as he did.

QCAT Precedent

51. [51]
    Member Favell, in the decisions of Cordingly v Jarvis^[38] (‘Cordingly’s case’) and Petrie v Peters^[39] (‘Petrie’s case’), both of which were delivered before the decision of the Adjudicator on 11 March 2014, held that notice of contribution is an essential prerequisite to filing an application for dividing fence orders and the making of such orders.
52. [52]
    Cordingly’s case concerned a non-pool barrier-dividing fence. The dividing fence in Petrie’s case included a pool barrier.
53. [53]
    In Cordingly’s case, Member Favell referred^[40] to s 30(2) of the Dividing Fences Act and that it requires that an owner give an adjoining owner notice to contribute under Division 2 if the owner wants the adjoining owner to contribute.
54. [54]
    The Member also referred^[41] to s 30(3) of the Act which permits an owner to apply to the Tribunal if a dispute arises about carrying out fencing work for which a notice to contribute has been given. Absent such notice, the Member found that the Tribunal was not vested with jurisdiction to make the fencing orders sought.^[42]
55. [55]
    In Petrie’s case, s 9 of the Dividing Fences Act applied to exclude the operation of s 19 to s 40 of that Act to the pool barrier part of the dividing fence. The analogous sections of the Building Act applied instead. Member Favell again found that no notice to contribute to fencing work had been given^[43] and the Tribunal therefore had no jurisdiction to hear the claim.^[44]
56. [56]
    The decisions in Cordingly and Petrie ought to have been followed by the Adjudicator,^[45] in which event he would have dismissed the First Application for want of jurisdiction.

No dividing fence on common boundary

57. [57]
    It is also clear on reading the Tribunal file of documents and the transcript of oral evidence in the first application that there was no evidence upon which the Adjudicator could conclude that a dividing fence which partly included a pool barrier had ever existed on the common boundary of the adjoining properties.
58. [58]
    On the contrary, as appears from the facts which I have recited, the amendment sought by Mr Fisher in the first application specifically described the fence in question as adjacent and Mr Fisher said in evidence that it stood on the occupational boundary, not on the common boundary. Consequently, the fence was neither a dividing fence within the meaning of that term in the Dividing Fences Act nor one of which a pool barrier formed part for the purposes of the Building Act.
59. [59]
    Therefore, the Tribunal could not have jurisdiction to make an order restraining the demolition of a fence and pool barrier situated wholly on the Wenzel land as Mr Fisher had asked for in his email of 10 February 2014.

Approved plans did not provide for dividing fence on common boundary

60. [60]
    Further, with the exception of a 1.1 metre nib wall subsequently built and now (though not originally) standing on the common boundary between the Wenzel and Fisher properties, the approved plans to which the Adjudicator’s orders referred did not provide at all for the construction of a dividing fence on the common boundary of the adjoining Fisher and Wenzel properties as the Adjudicator ordered.
61. [61]
    Therefore, Mr and Mrs Wenzel could not possibly comply with the first orders and Mr Fisher could not comply with them either insofar as they prohibited any attachments by him to a dividing fence which neither existed nor, with the exception of the nib wall to which I have referred, would be constructed on the common boundary in accordance with the approved plans.
62. [62]
    Thus, the issue of nullity aside, the first orders lacked utility. They were incapable of enforcement if the Adjudicator had jurisdiction to make them in the first place.

No encroachment jurisdiction

63. [63]
    As will appear later from my consideration of relevant sections of the legislation which apply in this case, there is nothing in the Dividing Fences Act and the Building Act, the enabling Acts from which the QCAT Act derives its jurisdiction, that vests the Tribunal with jurisdiction to order removal of encroachments or structures built by one neighbour on an adjoining neighbour’s land.
64. [64]
    Therefore, to the extent that it purported to do so, the Adjudicator’s order that Mr Fisher remove any encroachments was a nullity as well.

No consent order jurisdiction

65. [65]
    As also appears from the transcript of the hearing of the first application on 11 March 2014, the Adjudicator’s fencing orders were not made by express consent of the parties.
66. [66]
    However, in case it might be concluded that the first orders were made by implied consent or acquiescence, I find that neither could vest the Tribunal with a jurisdiction which it did not have in the first place.

No estoppel

67. [67]
    None of the Adjudicator’s orders made on 11 March 2014 fall into the category of orders made improperly but within power which survived and are enforceable unless and until set aside on appeal.
68. [68]
    Therefore, none of the issues raised and decided in the first application are res judicata. There is no estoppel by record. No Anshun estoppel arises in bar to a second application.

The second application

69. [69]
    Mr Fisher filed a second QCAT application in Southport, claim 733/15, on 23 November 2015 traversing the same facts and matters referred to in the first application along with new facts and matters that had arisen in the ensuing period.

Statement of Claim

70. [70]
    Mr Fisher’s claim in the second application is formally pleaded in a thirteen-page statement of claim.^[46]
71. [71]
    That is not, of itself, necessarily objectionable and may sometimes assist the Tribunal and the parties in understanding the basis and particularity of a complex claim even though inconsistent with the Tribunal’s objective of informality.^[47]
72. [72]
    However, as will appear from what follows, the formal pleading in this case is objectionable for other reasons and I may act on that of my own initiative^[48] as I do.

Erroneous premise

73. [73]
    The author of the statement of claim, apparently a lawyer given its structure and content, proceeded on the unstated premise that the Tribunal is a Court of record of general jurisdiction, which it is not. That fundamental error pervades the pleading.
74. [74]
    As against that, the Tribunal is jurisdictionally limited by the four corners of its statutory constitution^[49] and the provisions of the dividing fences enabling legislation to which I will refer in detail later.

Orders now sought by Mr Fisher

75. [75]
    Mr Fisher wants the Tribunal to make the following orders in the second application:

    1. That Mr and Mrs Wenzel pay him $4,618^[50] within 14 days for estimated compensation for pool barrier fence restoration;
    2. That Mr and Mrs Wenzel give Mr Fisher and his contractors access for that purpose;
    3. A mandatory injunction requiring that Mr and Mrs Wenzel engage contractors at their cost within 21 days to rectify and redirect garden roof water flow to stormwater drain to prevent rain water ingress on Mr Fisher’s property;^[51]
    4. A mandatory injunction requiring that Mr and Mrs Wenzel engage contractors at their cost within 21 days to perform dining pavilion roof works to comply with architectural plans including diversionary gutters and other works for diversion of water to stormwater services;^[52]
    5. That Mr and Mrs Wenzel pay Mr Fisher $2,500 within 14 days for the estimated cost of building works to reinstate footing support to his pool and patio area^[53] and repair of the tiled surface;
    6. A mandatory injunction requiring that Mr and Mrs Wenzel within 21 days at their own cost render, finish and paint all and any sides of the new dividing fence sections to match the existing;^[54]
    7. A mandatory injunction requiring that Mr and Mrs Wenzel within 21 days at their own cost remove, and not reinstall, all barricades, temporary construction fencing, black plastic barriers or hoarding on or about their land on, near or adjacent to the boundary line between the Fisher land and the Wenzel land exceeding the top of any part of the fence between their land and that Mr and Mrs Wenzel not place or store building or other materials on the garden shed, dining pavilion or other structure roofs in view of his property;^[55]
    8. Renewal of the Orders made by the Adjudicator on 11 March 2014 in the first application amending same to permit attachments to the dividing fence in conformity with appearances with certain qualifications;^[56]
    9. A mandatory injunction requiring that Mr and Mrs Wenzel within 21 days at their own cost engage such contractors as required to repair damage to the dividing fence west of the new dining pavilion;^[57]
    10. An injunction restraining Mr and Mrs Wenzel from performing building works referred to in amended architectural plans including a section of new block fence wall to the very western end of the dividing fence, a new garage outbuilding between the existing garage and dividing boundary fence, a new semi enclosed area to the west of the dining pavilion, and the removal of the existing dividing fence to accommodate the new southern vertical wall of the additional garage;^[58] and
    11. An injunction restraining the performance of building works involving building and other materials left on, near or against the dividing fence or any structure now forming a dividing fence, which is in plain view of Mr Fisher’s property.^[59]

Orders 1 and 2

76. [76]
    Threshold questions concerning the Tribunal’s jurisdiction and my power to make orders 1 and 2 and the other orders sought by Mr Fisher arise again in legislative context for consideration.

Contribution Notice requirements - s 245XE of the Building Act

77. [77]
    Section 245XE of the Building Act applies to pool barrier dividing fences on the common boundary of adjoining lots on which there are regulated pools where each will use the same part along the common boundary.^[60]
78. [78]
    Either pool owner may construct the part of the barrier for pools on the common boundary or alter an existing dividing fence to form part of the barrier or attach something so long as it does not unreasonably and materially alter or damage the fence.^[61] However, this can only be done if all parties have agreed or the Tribunal has so ordered.^[62]
79. [79]
    Section 245XE(4) of the Building Act requires that, before carrying out such fencing work, a pool owner must give the other pool owner a notice of proposed fencing work unless the Tribunal has ordered that the fencing work be carried out.
80. [80]
    Because the first orders in the first application are a nullity, there are no Tribunal orders currently in existence for carrying out fencing works that are within the exception provided for in s 245XE(4) of the Building Act.

Owner means owners where more than one

81. [81]
    Section 245XA of the Building Act provides that, for land, the word ‘Owner’ means owner as defined in s 14 of the Dividing Fences Act. The latter section provides that ‘owner’ in the case of land recorded in the freehold land register under the Land Title Act 1994 (Qld) means the registered owner of the lot under that Act;^[63] as in the present case.
82. [82]
    Section 32A of the Acts Interpretation Act 1954 (Qld) (‘the AIA’) provides that definitions in, or applicable to, an Act apply except so far as the context or subject matter otherwise indicates.
83. [83]
    Section 32C of the AIA provides that words in the singular include the plural and vice versa in an Act.^[64] Therefore, ‘owner’ means ‘owners’ for purposes of s 245XA and other related sections of the Building Act as well as for purposes of s 31 of the Dividing Fences Act, i.e. all owners where there are more than one.
84. [84]
    My interpretation in this regard is also guided by the decision in PMT Partners Pty Ltd (In Liq) v Australian National Parks & Wildlife Service^[65] in which the High Court held^[66] that limitations and qualifications are not to be read into a statutory definition unless clearly required by its terms or its context.
85. [85]
    There is no clear requirement for qualification or limitation of s 245XA of the Building Act by its terms or context. Therefore, notice pursuant to s 245XE(4) in this case had to be given by both Mr and Mrs Fisher. Likewise, notice pursuant to s 31 of the Dividing Fences Act if it applied.

Practical considerations

86. [86]
    Though not invoked in aid of my interpretation of these provisions, it seems to me that sound practical considerations underlie the prescriptive requirement that joint owners must jointly give contribution notice.
87. [87]
    For example, joint owners will not necessarily be of one mind on the nature and cost of a new dividing fence or remedial work to repair an existing one. They might disagree on what fencing or fencing repair is required, if at all, and what is acceptable.
88. [88]
    Owners of an adjoining property could potentially face separate and inconsistent contribution claims if joint notice to contribute was not given. Multiple liabilities could arise where a claim for contribution was made by only one of two joint owners without the knowledge or consent of the other, and then by the other owner separately and later.
89. [89]
    This could feasibly occur in the situation where joint registered owners not in occupation are related only by commercial arrangements between them or, for example, in the case of joint owners who are separated or getting divorced.
90. [90]
    The prescriptive requirement that joint owners must jointly give the required contribution notice and comply with other prescribed requirements as a condition of the Tribunal’s jurisdiction being enlivened avoids such an outcome.

Contribution Notice given only by Mr Fisher invalid

91. [91]
    Mr and Mrs Fisher were therefore obliged jointly to give Mr and Mrs Wenzel a valid Form 39 Notice under s 245XM of the Building Act with respect to proposed fencing work for a swimming pool barrier.^[67]
92. [92]
    Only Mr Fisher gave that notice and he seeks contribution of $4,618 from Mr and Mrs Wenzel. Though he offers no contribution, if a contribution by Mr Fisher were considered appropriate, it would have to be ordered against both him and Mrs Fisher as joint owners of the land upon their giving valid notice.
93. [93]
    Though Mr Fisher made a title search of the Wenzel property,^[68] he overlooked the fact that both he and his wife, Pamela Fisher, are joint registered owners of their own property, not just Mr Fisher.^[69] Mrs Fisher’s name and signature are conspicuously absent from the notice but were essential.
94. [94]
    The omission of Mrs Fisher invalidates the contribution notice because the essential prerequisite prescribed for jurisdiction under s 245XE of the Building Act is not satisfied. Compliance with the requirement cannot be waived.
95. [95]
    Also, the omission explains why Mrs Fisher was not named as co-applicant with Mr Fisher in the first and second applications.
96. [96]
    Though I could have ordered Mrs Fisher’s joinder in the second application of my own motion,^[70] there would have been no point because the joinder could not possibly validate an otherwise invalid contribution notice upon which the second application depends for establishing the Tribunal’s jurisdiction.

No power to condone invalidity

97. [97]
    Strict compliance with a form prescribed under an Act is not necessary. Substantial compliance suffices,^[71] however the form, i.e. the contribution notice in this case, is not itself properly completed unless the requirement(s) for the form to be completed in a specified way^[72] or the specified information to be completed in the form^[73] are met.
98. [98]
    Though s 91 of the Dividing Fences Act and its mirror section^[74] in the Building Act provide that substantial compliance with any agreement, notice or order mentioned in the Act is adequate, neither of those sections apply to a notice, which is itself invalid from the outset.
99. [99]
    The requirement for the Notice to be given by both the Applicant and Mrs Fisher having not been satisfied, the invalidity of Mr Fisher’s contribution notice is absolute.

No quotation attached

100. [100]
     Section 245XM(4) of the Building Act is also prescriptive. A Notice must be accompanied by a copy of at least one written quotation stating the estimated cost of the fencing work to be carried out. No quotation accompanied Mr Fisher’s Notice. It is invalid for that reason as well. I have no power to condone the omission.
101. [101]
     There is sound practical reason for requiring that a quotation accompany a contribution notice. Without it, persons in the position of Mr and Mrs Wenzel would have no evaluative basis upon which to decide whether they ought agree to the requested contribution or contest the notice.

Proposed fencing work

102. [102]
     The fencing work proposed by Mr Fisher is described in the notice as

... a 1800mm high 6 metre long fence of 200 series block to match the adjoining fence section in the same line along the boundary (which) will abut the existing structure and will incorporate a waterproof membrane onto the roof of the shed to ensure no water from the roof affects the structural integrity of the fence.^[75]

103. [103]
     So far as I can ascertain it, the pool shed which is wholly situated on the Wenzel property is the ‘existing structure’ referred to by Mr Fisher.
104. [104]
     Alternatively, if Mr Fisher is referring to the nib wall, it is the only section of block wall, which currently exists on the actual common boundary line of the adjoining properties. The nib wall is offset from, and bridges the gap between, the southern wall ends of the zero lot garden shed and dining pavilions wholly constructed on the Wenzel property in accordance with the approved plans after 18 January 2014.^[76]

No power to order associated works

105. [105]
     Whichever be the case, Mr Fisher seeks proposed fencing work orders in terms which would require Mr and Mrs Wenzel to undertake associated waterproofing works on the shed roof. The garden shed is situated entirely on their property as I have already found.
106. [106]
     Even if the contribution notice were valid which is not the case, I have no power to make an order for remedial works on structures such as the garden shed situated wholly on the Wenzel property.

False assertions in Contribution Notice

107. [107]
     In the Comments section of the Notice,^[77] Mr Fisher says that the previous dividing fence demolished by Mr and Mrs Wenzel without his consent was a compliant pool fence and that ‘the structure built on your property has resulted in the non compliance of the pool fencing to my swimming pool’. The allegation is unsupported by any evidence and remains mere assertion.
108. [108]
     On the contrary, the evidence in both the first and second applications proves conclusively that there never was a dividing fence of which a pool barrier formed part on the common boundary of the adjoining properties prior to the construction of the nib wall of just 1.1 metres and, excepting that, there still is not to this day.^[78]
109. [109]
     Contrary also to Mr Fisher’s statement in the Comments section of the Notice, I find that the structures built on the Wenzel property did not result in non-compliance of the pool fencing to Mr Fisher’s property as he alleges.

Credibility implications

110. [110]
     Mr Fisher’s false allegations in his Form 39 Notice do not reflect well on his credibility.
111. [111]
     As a matter of general observation, I found the evidence of Mr and Mrs Wenzel overall to be reliable and corroborated by documentary evidence wherever available.
112. [112]
     In particular, and insofar as the evidence in the second application is concerned, I accept entirely the evidence of Mr Wenzel set out in his affidavit sworn 22 January 2016 and supplemented by his oral evidence. Wherever there is a conflict between Mr and Mrs Wenzel’s evidence on the one hand, and Mr Fisher’s evidence on the other, I prefer the former to the latter.

Orders 3 and 4

113. [113]
     Questions again arise concerning the Tribunal’s jurisdiction and power to make injunctive orders 3 and 4 in the terms sought by Mr Fisher.

Injunctive powers – not exercisable on the facts

114. [114]
     The Tribunal’s power to make injunctive orders is discretionary. Injunctive orders may only be made by a legally qualified Member of the Tribunal, not by a legally qualified Adjudicator such as myself.^[79]
115. [115]
     However, referral to a Member for that purpose would be pointless if the power to make the orders sought by Mr Fisher is not exercisable on the facts as is the case here for the reasons which follow.

Tribunal jurisdiction and the Dividing Fences Act powers

116. [116]
     Section 33 of the Dividing Fences Act empowers the Tribunal in its discretion to make orders in respect of dividing fences.
117. [117]
     By definition, dividing fences means fences situated on the common boundary of adjoining properties unless natural physical features make this impractical or the land includes one or more parcels of pastoral land separated by a watercourse, lake or other natural feature insufficient to stop stock passage.^[80]
118. [118]
     The natural feature and pastoral land exception (‘the exception’) does not apply on the facts of this case.
119. [119]
     The Tribunal’s powers in this statutory context are expressly conferred and specifically limited by the following sections:

     1. Section 27(2) which permits an order for removal of attachments to, and restoration of, a dividing fence;
     2. Section 33(3) which permits an order that a fence other than a dividing fence on adjoining land be removed if the Tribunal considers that necessary to allow fencing work for a dividing fence;
     3. Section 35(1) in respect of an application in relation to fencing work for a dividing fence which permits one or more of the orders described in subparagraphs (a) to (k);
     4. Section 37(1) and (2) which permits an order for fencing work for a dividing fence against an absentee adjoining owner who cannot be located after reasonable enquiry;
     5. Section 38(3) which permits an order preventing an adjoining owner from constructing or demolishing a dividing fence; and
     6. Section 39(3) which permits an order for removal, modification or rectification of a dividing fence and ordering an owner to bear the related costs.

Analogous Building Act provisions

120. [120]
     Analogous sections of the Building Act apply in the case of pool barrier dividing fences for regulated pools.^[81] Section 245X(2) of the Building Act modifies the responsibilities of neighbours under the Dividing Fences Act in relation to a dividing fence that is, or may be, wholly or partly, a pool barrier. Section 245X(4) gives the Tribunal jurisdiction to resolve disputes where the parties are unable to do so informally.
121. [121]
     The sections which follow s 245XB of the Building Act apply, and only apply, to pool barrier fences on the common boundary of adjoining properties. Location on a common boundary is the essential common denominator for all purposes, absent which the Tribunal has no jurisdiction unless the exception referred to earlier applies.
122. [122]
     That essential common denominator is absent in the present case; there never was a pool barrier fence on the common boundary of the adjoining properties.

Neighbours rights and responsibilities - dividing fences only as defined

123. [123]
     Insofar as neighbours rights and responsibilities in respect of dividing fences are regulated by Part 2A of Chapter 8 of the Building Act and Part 3 of the Dividing Fences Act, none of those rights and responsibilities of neighbours in relation to each other apply to fences, whether pool barrier fences or otherwise, which are not dividing fences, i.e. not on the common boundary of adjoining properties; unless the exception earlier referred to applies which it does not in this case.
124. [124]
     Section 245XO of the Building Act, which confers jurisdiction on the Tribunal in respect of pool barrier dividing fence disputes, is a mirror of s 33 of the Dividing Fences Act with due alteration of detail as relates to non-pool barrier dividing fence disputes.
125. [125]
     Insofar as Tribunal powers under the Building Act are concerned, s 245XQ of the Building Act mirrors s 35(1) of the Dividing Fences Act excepting that s (1)(g) of the latter which permits an order that no dividing fence is required is omitted from s 245XQ.
126. [126]
     Subsections (1)(k) and (l) of s 245XQ which permit orders on whether or not a pool barrier portion of a dividing fence would comply with a pool safety standard and ‘any other matter necessary for the administration of this part’ are added to s 245XQ but have no relevance in this case.

Orders 3 and 4 do not concern a dividing fence so no jurisdiction

127. [127]
     The Tribunal has no jurisdiction to make the injunctive orders 3 and 4 because they relate to structures and the alleged effect of those structures situated wholly on the Wenzel property which do not fall within the definition of a dividing fence for purposes of the Dividing Fences Act and the Building Act.

Orders 6, 7, 9, 10 and 11 similarly not within jurisdiction

128. [128]
     Orders 6, 7, 9, 10 and 11 fall into the same category as orders 3 and 4 of the orders sought by Mr Fisher so the Tribunal has no jurisdiction to make them either.

Order 5 not within jurisdiction

129. [129]
     Order 5 of the orders sought, though not injunctive, falls into the same category as orders 3, 4, 6, 7, 9, 10 and 11 because it does not relate to a dividing fence on the common boundary. The Tribunal has no jurisdiction to make the order.
130. [130]
     Further, the Tribunal has no jurisdiction to make order 5 because the amount sought is in the nature of compensation for damages arising out of an alleged withdrawal of lateral support of the Fisher pool and slab and damage to tiles wholly on the Fisher property for which the dividing fences legislation makes no provision.

Order 8 not within jurisdiction

131. [131]
     As I have already found, the Adjudicator’s first orders made on 11 March 2014 are a nullity. They bind no one because they were made without jurisdiction and beyond power. Renewal of an order which is a nullity is impossible at law.
132. [132]
     Therefore, the Tribunal has no jurisdiction or power to make order 8.

Multiple renewals not available in any event

133. [133]
     Nullity aside, Mr Fisher applied for renewal pursuant to s 133 of the QCAT Act in the first application, which was refused. He did not appeal the refusal. A decision cannot be renewed again under chapter 2, part 7, division 5 of the Act. The Tribunal would have been functus officio, having exhausted its’ function, if the first orders were not a nullity as they are.

Circumvention precluded

134. [134]
     Mr Fisher’s attempt to circumvent refusal of his application to renew the orders in the first application by filing the second application seeking, amongst others, an order for renewal of the first orders in the present proceedings, would therefore be impermissable.
135. [135]
     If renewal could not be applied for a second time in the first proceeding then it could not be applied for a second time in a subsequent proceeding relating to the first proceeding. Mr Fisher’s attempted circumvention is therefore an abuse of process.

Abuse of process

136. [136]
     It is also an abuse of process to bring legal proceedings which are inevitably bound to fail^[82] which is the case here and was also in the first application because statutory prerequisites for jurisdiction have not been satisfied.
137. [137]
     Mr Fisher was legally assisted in preparation of the second application. It relies on an objectionable statement of claim which has no prospect of success for the jurisdictional reasons to which I have referred. The proceedings are unjustifiably oppressive because they are incapable of serving any legitimate purpose.

Causing vexation and unnecessary disadvantage

138. [138]
     Mr Fisher’s assertions in the first and second applications that a dividing fence of which a pool barrier formed part existed prior to demolition were unsupported and untenable.
139. [139]
     As I have already said, the fence was adjacent to the common boundary as admitted in Mr Fisher’s email dated 10 February 2014 and he gave evidence that it stood on the occupational boundary which Mr Fisher conceded was completely on the Wenzel property.
140. [140]
     Mr Fisher’s conflation of the occupational boundary with the common boundary was unwarranted because he clearly understood the distinction and elected after legal advice not to proceed with a claim for adverse possession. The fence was not a dividing fence within the meaning of the statutory definition of a dividing fence.
141. [141]
     Mr Fisher also asserted that the southern walls of the zero lot garden shed and pool pavilion constituted a new dividing fence^[83] against compelling evidence to the contrary which I referred to earlier. He asserted the garden shed was not wholly on the Wenzel land^[84] but produced no reliable evidence in support.
142. [142]
     Mr Fisher’s assertion that construction work performed on the Wenzel property was non-compliant with approved plans and building approvals was completely unsupported as well.
143. [143]
     Though only contextually relevant, Mr Fisher’s investigations and complaints to local government and the Queensland Building and Construction Commission concerning allegedly non-compliant structures built on the Wenzel property were without substance and singularly unsuccessful, as the evidence of Mr and Mrs Wenzel established.^[85]
144. [144]
     No matter how often repeated, mere assertion cannot make a truth out of fiction and has no evidentiary value.
145. [145]
     Mr Fisher’s persistence in making false assertions for the collateral purpose of sustaining successive applications without merit was vexatious and has caused Mr and Mrs Wenzel unnecessary disadvantage in having to defend themselves and repeatedly answer spurious allegations.
146. [146]
     In the result, Mr Fisher’s conduct has caused Mr and Mrs Wenzel to spend an estimated $10,000^[86] in legal costs in what is a no cost minor civil dispute jurisdiction in this Tribunal.

Collateral consequence

147. [147]
     In the process, Mr Fisher has also used up the Tribunal’s time and resources unnecessarily.

Costs and compensation not recoverable

148. [148]
     Mr and Mrs Wenzel’s costs and expenses are not recoverable in the minor civil disputes jurisdiction of this Tribunal for the following reasons.
149. [149]
     Section 47(2)(c) of the QCAT Act empowers the Tribunal to make a costs order against a party to compensate another for any reasonable costs, expenses, loss inconvenience and embarrassment resulting from the proceeding or part.
150. [150]
     However, s 102 of the QCAT Act limits the Tribunal’s power and discretion in the case of minor civil disputes to ordering only those costs provided for in the rules.
151. [151]
     Rule 83 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘the QCAT Rules’) provides that, for s 102 of the QCAT Act, the Tribunal may award costs against a party to the proceeding only if the party is a respondent against whom the Tribunal has made a final decision and only to order the party to pay the applicant the amount of the prescribed fee for filing the application for the proceeding.
152. [152]
     A vexatious and frivolous litigant can therefore make an unmeritorious application with impunity in the knowledge that the Tribunal has no power to award costs against him and compensation to his victims. There is a statutory immunity from monetary penalty.
153. [153]
     This anomaly can only be addressed by legislative amendment. Unless and until it is, I must apply the law as it stands. Unpalatable though it may be to Mr and Mrs Wenzel and understandably so, they are therefore left remediless because this is a minor civil dispute.

Should Mr Fisher’s second application be dismissed pursuant to s 47 and s 48 of the QCAT Act?

154. [154]
     My findings of abuse of process, vexation and unnecessary disadvantage caused to Mr and Mrs Wenzel would warrant dismissal of Mr Fisher’s second application pursuant to s 47 and s 48 of the QCAT Act in which event Mr Fisher would first have to seek leave of the President of the Tribunal to start another proceeding of the same kind.^[87]
155. [155]
     However, the question is whether a proper exercise of my discretion requires that I do so in this case.
156. [156]
     I have come to the conclusion that it would not be in the interests of justice that Mr Fisher (and his wife in due course) be required to seek leave of the President to start another proceeding of the same kind.
157. [157]
     Compelling Mr Fisher to seek leave to start another proceeding, should a further application be necessary, would simply exacerbate the unnecessary disadvantage experienced by Mr and Mrs Wenzel by adding yet further to delay in the finalisation of outstanding issues between the parties.
158. [158]
     Therefore, rather than ordering dismissal of Mr Fisher’s application pursuant to s 47 and s 48 of the QCAT Act, I will simply order dismissal of Mr Fisher’s application for want of jurisdiction.

Further dividing fence application open

159. [159]
     A third dividing fence application may have to be made by either or both Mr and Mrs Wenzel or Mr and Mrs Fisher in due course if they cannot shortly find a compromise if that is yet possible.
160. [160]
     However I urge the parties to arrange mediation before filing any new application because, given the acrimonious history of this dispute, they will surely not be able to reach a compromise without the skills and assistance of an independent mediator.

Completion of work meanwhile

161. [161]
     Given the outcome in this case, Mr and Mrs Wenzel may complete construction on their property to finality in accordance with approved plans and building approvals. There are no orders of this Tribunal preventing that.
162. [162]
     There has never been an impediment to Mr and Mrs Fisher rehabilitating their own property so long as all activities are carried out lawfully.
163. [163]
     Rehabilitation of neighbourly relations hopefully might follow in due course.

Pool barrier status quo

164. [164]
     Mr and Mrs Wenzel currently have a compliant pool barrier fence on their own property. There is no reason why Mr and Mrs Fisher should not erect a pool barrier fence on their property if they have not done so by now. Mr Fisher has had the pool area temporarily secured in any event.

Disposal of the first application

165. [165]
     In circumstances where the first orders in the first application are a nullity, the Tribunal file in Claim Q34/14 at Southport ought come back before me for formal dismissal of Mr Fisher’s claim for want of jurisdiction in due course as I will direct in that matter.

Decision in this proceeding and disposal

166. [166]
     I order that the Application by Ronald Fisher for minor civil dispute – dividing fences in the present proceedings is dismissed for want of jurisdiction.