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- Unreported Judgment
Nunn v Boyer QCAT 327
Nunn & Anor v Boyer & Anor  QCAT 327
Other minor civil dispute matters
2 June 2017
Mr Martin, Justice of the Peace
17 July 2017
Application to dismiss or strike out is refused.
REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where application to strike out/dismiss filed prior to hearing – where jurisdictional issues exist with respect to urgent fencing work, filing and serving of a dividing fences dispute application – whether sufficient information on the file to trigger a strike out or dismissal – whether the applicants have complied with the time limits
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 13, s 28, s 31
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 47, s 48
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
REASONS FOR DECISION
- This is a minor civil dispute – dividing fences.
- It appears that the claim was filed on 13 April 2017.
- I was unable to find a Form 53, Application for minor civil dispute – dividing fences, on the file.
- There was a Form 2, Notice to contribute for fencing works, dated
6 March 2017, on the file. The Form 2 was accompanied by an undated quotation and unsigned contract from Wilson Fencing.
The dismiss/strike out application
- On 15 May 2017, the Respondents filed a Form 40, Application for miscellaneous matters in the Brisbane Registry.
- It came before me as a chambers application on 2 June 2017.
- They sought that the application be dismissed or struck out on the grounds that:
- They have received a Form 2, Notice to contribute, but not a Form 53, Application for minor civil dispute – dividing fences.
- The application is out of time.
- There is no ground for contribution to a boundary fence as the current fence was constructed without permission and there was no urgent need.
- There are two relevant Acts:
- The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the Neighbourhood Disputes Act”); and
- The QCAT Act.
The Neighbourhood Disputes Act considerations
- It appears from the file that the issue concerns an existing dividing fence.
- It appears that the fencing work has been done; however, it is uncertain from the file whether the fencing work was required and whether it can be characterised as urgent under the Neighbourhood Disputes Act, s 28. It seems that it may not be urgent as a Form 2, Notice to contribute, was served pursuant to the same Act, s 31.
- As there is no Form 53, Application for minor civil dispute – dividing fences, on the file, I could not determine whether the time limits prescribed in the Neighbourhood Disputes Act had been complied with by the Applicants.
- Further, there was not sufficient information on the file where one could make a determination about whether the fence is a sufficient fence pursuant to the same Act, s 13.
- I considered that there might well be jurisdictional issues that would be best considered at hearing.
The QCAT Act considerations
- The QCAT Act, s 47 and s 48, deals with dismissing/striking out an application.
- Section 47(1) provides that an application may be dismissed/ struck out if the tribunal considers the proceeding is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.
- Section 48 deals with dismissal/striking out if a party is acting in a way that unnecessarily disadvantages another party.
- Having carefully reviewed the file, I did not consider that there was sufficient information before me that would trigger or both of these sections to a sufficient degree of certainty and the application would be best considered at hearing.
- Application to dismiss or strike out is refused.
- Published Case Name:
Christopher Nunn & Anor v April Boyer & Anor
- Shortened Case Name:
Nunn v Boyer
 QCAT 327
Justice of the Peace Martin
17 Jul 2017