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Nunn v Boyer[2017] QCAT 327

CITATION:

Nunn & Anor v Boyer & Anor [2017] QCAT 327

PARTIES:

Christopher Nunn

Rachel Nunn

(Applicants)

 

v

 

April Boyer

Matthew Boyer

(Respondents)

APPLICATION NUMBER:

MCDO742/17

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

2 June 2017

HEARD AT:

Brisbane

DECISION OF:

Mr Martin, Justice of the Peace

DELIVERED ON:

17 July 2017

DELIVERED AT:

Southport

ORDERS MADE:

Application to dismiss or strike out is refused.

CATCHWORDS:

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

APPEARANCES:

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

Background

  1. [1]
    This is a minor civil dispute – dividing fences.
  2. [2]
    It appears that the claim was filed on 13 April 2017.
  3. [3]
    I was unable to find a Form 53, Application for minor civil dispute – dividing fences, on the file.
  4. [4]
    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

  1. [5]
    On 15 May 2017, the Respondents filed a Form 40, Application for miscellaneous matters in the Brisbane Registry.
  2. [6]
    It came before me as a chambers application on 2 June 2017.
  3. [7]
    They sought that the application be dismissed or struck out on the grounds that:
    1. They have received a Form 2, Notice to contribute, but not a Form 53, Application for minor civil dispute – dividing fences.
    2. The application is out of time.
    3. There is no ground for contribution to a boundary fence as the current fence was constructed without permission and there was no urgent need.
  4. [8]
    There are two relevant Acts:
    1. The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the Neighbourhood Disputes Act”); and
    2. The QCAT Act.

The Neighbourhood Disputes Act considerations

  1. [9]
    It appears from the file that the issue concerns an existing dividing fence.
  2. [10]
    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.
  3. [11]
    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.
  4. [12]
    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.
  5. [13]
    I considered that there might well be jurisdictional issues that would be best considered at hearing.

The QCAT Act considerations

  1. [14]
    The QCAT Act, s 47 and s 48, deals with dismissing/striking out an application.
  2. [15]
    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.
  3. [16]
    Section 48 deals with dismissal/striking out if a party is acting in a way that unnecessarily disadvantages another party.
  4. [17]
    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.

Order

  1. [18]
    Application to dismiss or strike out is refused.
Close

Editorial Notes

  • Published Case Name:

    Christopher Nunn & Anor v April Boyer & Anor

  • Shortened Case Name:

    Nunn v Boyer

  • MNC:

    [2017] QCAT 327

  • Court:

    QCAT

  • Judge(s):

    Justice of the Peace Martin

  • Date:

    17 Jul 2017

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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