Fisher v Wenzel (No 1)[2018] QCAT 261

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The Sovereign Islands is described on its website as a unique millionaire’s playground.^[1] It is an exclusive waterfront estate at Paradise Point on the northern end of the Gold Coast of Queensland. The Applicants, Mr and Mrs Fisher, and the Respondents, Mr and Mrs Wenzel, are next door neighbours in Excalibur Court. Mr and Mrs Wenzel own Lot 21 on RP 215035. Mr and Mrs Fisher own Lot 22. There is a swimming pool on each Lot.
2. [2]
   This is the sixth year of a protracted neighbourhood dispute between Mr and Mrs Fisher and Mr and Mrs Wenzel in a variety of unpleasant manifestations variously concerning encroachments of structures built by Mr and Mrs Fisher on Mr and Mrs Wenzel’s property, Mr and Mrs Wenzel’s lawful demolition of those encroachments, new building construction on the Wenzel property and, now, a new dividing fence of which part is a pool barrier on the common boundary of their adjoining properties.
3. [3]
   The Tribunal’s decision in Fisher v Wenzel & Anor [2016] QCAT 456 (MCDO733/15) provides historical context and is also relevant insofar as the parties’ prior knowledge of the provisions of relevant legislation and Tribunal procedures is concerned.
4. [4]
   As is evident from correspondence filed in several applications to the Tribunal by Mr and Mrs Fisher over the years, each side has had the assistance of solicitors in the background. The parties’ respective legal costs well exceed the cost of the fence in issue, now more so than in 2016.
5. [5]
   Mr and Mrs Wenzel have so far incurred approximately $6,000^[2] in legal expenses defending three current applications filed by Mr and Mrs Fisher in this Tribunal. They spent approximately $10,000 in defence of Mr and Mrs Fisher’s applications in MCDO 733/15 and MCDO 34/14^[3] which culminated in the 2016 Tribunal decision.
6. [6]
   In total, Mr and Mrs Wenzel have outlaid over $16,000 in legal costs so far. The overall cost of the dividing fence, the subject of these proceedings, is $17,490.00, of which $8,745.00 is payable, but as yet unpaid, by Mr and Mrs Fisher and $8,745.00 already paid by Mr and Mrs Wenzel who meanwhile have also paid the fencing contractor in full.
7. [7]
   The parties know from my decision in 2016^[4] that legal costs are not recoverable in proceedings brought or defended in the Tribunal’s minor civil dispute jurisdiction. That is so regardless of whether an Application succeeds or fails, whether or not Applicants abuse the Tribunal’s process and whether or not Applicants continue to make application after application, frivolously and vexatiously.^[5] Only legislative amendment will change that.
8. [8]
   Mr and Mrs Fisher know^[6] that the only sanction available to the Tribunal where Applicants in minor civil disputes act frivolously or vexatiously or bring proceedings lacking in substance or abuse Tribunal process or act in a way that unnecessarily disadvantages Respondents in a minor civil dispute is to dismiss or strike out the claim pursuant to sections 47(2) and/or 48(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).
9. [9]
   By operation of section 49 of the QCAT Act, Applicants cannot then file another application of the same kind without first obtaining leave of the President of the Tribunal.
10. [10]
    Where an application for renewal of a decision is made, the decision is final.^[7] By operation of law,^[8] the Tribunal’s decision cannot be renewed again under Division 5 of Chapter 2 of the QCAT Act.
11. [11]
    In the case of an application for reopening, the Tribunal’s decision is also final and it cannot be challenged, appealed against, reviewed, set aside, or called into question in another way under the Judicial Review Act 1991 (Qld) or otherwise.^[9]
12. [12]
    Previously, in the period 2014 to 2016, Mr and Mrs Fisher filed two applications, MCDO 34/14 and MCDO 733/15, in the Tribunal against Mr and Mrs Wenzel.
13. [13]
    There are now a further three applications presently before the Tribunal in MCDO 559/17, MCDO 149/18 and MCDO 456/18, each of which filed by Mr and Mrs Fisher against Mr and Mrs Wenzel.
14. [14]
    Mr and Mrs Fisher’s application in MCDO 149/18, heard by me on 24 April 2018, concerns a discreet issue of Mr Wenzel’s removal of a fence cap atop a corner concrete column at the Excalibur Court end of the dividing fence. My decision in that matter is reserved and will be published separately.
15. [15]
    Mr and Mrs Fisher’s application in MCDO 456/18, part heard by me on 13 July 2018, stands adjourned with directions for evidence, an inspection of the affected properties and further hearing later this year. Mr and Mrs Fisher seek fencing orders in that application relating to a different section of a dividing fence on the same common boundary and a contribution.
16. [16]
    Why matters referred to in MCDO 456/18 were not raised in Mr and Mrs Fisher’s original application in MCDO 559/17 for fencing orders and whether an Anshun estoppel may apply preventing Mr and Mrs Fisher from separately litigating issues which could have been raised in the earlier proceedings is presently unclear and will be addressed when that application is heard and determined.
17. [17]
    The decision which I now publish relates solely to the application MCDO 559/17 filed by Mr and Mrs Fisher on 16 February 2018.
18. [18]
    Mr and Mrs Fisher now apply for renewal of the Tribunal’s final orders in MCDO 559/17 ‘due to recent events and evidence becoming available.’ They acknowledge that the time for applying for renewal of the final decision, 28 days^[10] after their receipt of notice of the final decision,^[11] has passed. I will accept that their acknowledgement implies a request for an extension of time.
19. [19]
    Mr and Mrs Fisher say that there may be problems with enforcing or implementing the final decision and they seek a decision from the tribunal on whether ‘a portion of the payment for the works is due and payable’ or ‘if other orders are required due to the current circumstances.’
20. [20]
    Section 133 of the QCAT Act relating to applications for renewal applies if, and only if, it is not possible for the Tribunal’s final decision in a proceeding to be complied with^[12] or if there are problems with interpreting, implementing or enforcing the Tribunal’s decision in a proceeding.^[13] Mr and Mrs Fisher bear the onus of proof on the balance of probabilities.
21. [21]
    Mr and Mrs Fisher also say that significant new evidence has arisen which ‘was not reasonably available when the proceeding was heard and decided’ and that this ‘may’ (not will) cause them a substantial injustice. That language implies a request that the proceedings be reopened and reheard.
22. [22]
    A reopening application must be made within 28 days of the ‘relevant day’^[14] which is the day on which the party was given written reasons (if required) or notice of the decision.^[15] It is notice of the Tribunal decision on 13 July 2017 which is relevant here. Mr and Mrs Fisher were given notice of that decision within days of QCAT Registry at Southport posting it to the parties on 13 July 2017. I am prepared to accept that there is an implied extension request in that respect as well.
23. [23]
    Mr and Mrs Fisher have to establish a reopening ground^[16] in order to obtain a reopening of the proceeding which, insofar as is relevant to this proceeding, is defined in the Dictionary which is Schedule 3 of the QCAT Act as meaning that:

2. (b)
   the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen which was not reasonably available when the proceeding was first heard and decided.^[17]

24. [24]
    Significant new evidence (if any) of non compliance with the Tribunal’s final orders concerning the construction of a dividing fence cannot be characterised as new evidence warranting a reopening of proceedings where it is relevant only to enforcement of a Tribunal decision.
25. [25]
    However, evidence may be ‘new’ and relevant to a renewal of final orders that are practically and/or legally unenforceable for some reason and in which event it is admissible as such. The distinction is real but somewhat subtle.
26. [26]
    In this application, Mr and Mrs Fisher say that the tilt panel wall which is the new dividing fence on the common boundary of the adjoining properties is unfinished and that it exceeds 2.2 metres in height in breach of the Tribunal’s final fencing orders dated 13 July 2017 in MCDO559/17.
27. [27]
    The Tribunal’s fencing orders dated 13 July 2017 required that:

3. (1)
   A new dividing fence be erected on the common (agreed) boundary between the properties of the parties from the western end of the pool pavilion to the front fence column nearest to Excalibur Court,

3. (2)
   The fence be constructed in accordance with the quotation dated 11 April 2017 by TUF CONCRETE FENCING (a copy of which is attached to this order).

3. (3)
   The fence construction be arranged by the Respondents.

3. (4)
   The fence construction to be completed within 60 days of the date hereof.

3. (5)
   The Applicants pay the Respondents half of the completed cost within 14 days of notification of completion of the fence.

3. (6)
   The Tribunal orders made on 10 July 2017 are vacated.

3. (7)
   The hearing date for 2 August 2017 is vacated.

3. (8)
   The proceedings are at an end.

28. [28]
    The parties amended and signed the Tuf Concrete Fencing (‘Tuf’) quotation (‘the Tuf quote’) referred to in order 2 before the orders were made and it sets out the fence specification and price ($17,490.00) which included the supply, delivery and installation of overlap style 2.2 metre high fencing and extras for crane hire and demolition works.
29. [29]
    According to the Tuf quote, measurement ‘quotes’ were expressly ‘approximate with final measurement to occur on completion’ with fence panels to be installed ‘as close as possible to natural ground levels.’ It is the meaning of the latter phrase that is controversial in this proceeding.
30. [30]
    Insofar as the dividing fence is allegedly unfinished, Mr Fisher said^[18] in evidence that the incomplete finishing works were (only) patching and grinding which Mr Wenzel said the contractor would be happy to come back and finish and that:

… one six metre panel remains incomplete… as finishing works have yet to be carried out by the contractor to our side.^[19]

31. [31]
    Mr Wenzel said in evidence, and I accept, that ‘if that’s the case’^[20] the fencing contractor would be happy to return but that he has never been contacted by Mr Fisher^[21] requesting that he do so and that Mr Fisher did not raise any issue with him about allegedly unfinished works until after he’d given Mr Fisher the bill^[22] for payment of the Fisher’s contribution.
32. [32]
    It seems to me that Mr Fisher’s failure to request Mr Kelly’s return was deliberate and a pretext for Mr and Mrs Fisher’s subsequent refusal to pay Mr and Mrs Wenzel the fencing contribution ordered by the Tribunal. It was also unconscionable in that it led Mr Wenzel and Mr Kelly to the assumption that the fence had been completed to the satisfaction of Mr and Mrs Fisher.
33. [33]
    For her part, Mrs Fisher described the dividing fence as ‘The Great Wall of China’^[23] because of its height.
34. [34]
    She said in oral evidence at the hearing that it is the fence height which is the real issue, notwithstanding her husband’s complaint that the fence is unfinished. Mrs Fisher said in this regard that they were happy ‘in all good faith’ to pay the money and that:

All we wanted to do was get this height thing sorted out and we’re happy to pay them.^[24]

35. [35]
    I find that it is the ‘height thing,’ rather than the fence being allegedly unfinished, which is the relevant issue in this proceeding. Mr and Mrs Fisher clearly justify their ongoing refusal to pay half of the cost of the fence previously agreed between the parties and ordered by me on 13 July 2017 on that basis.
36. [36]
    Consequently, an application filed by Mr and Mrs Wenzel in the Magistrates Court at Southport to enforce the Tribunal’s final fencing orders dated 13 July 2017, which Mr and Mrs Wenzel registered in that Court as a Judgment, stands adjourned for the time being.^[25] Of course, enforcement proceedings occur entirely independently of the Tribunal.
37. [37]
    The emergent reality in this case is that Mr and Mrs Fisher are applying to the Tribunal for enforcement orders which only the Magistrates Court has jurisdiction to make. In Mr Fisher’s affidavit filed on 17 April 2018 in these Tribunal proceedings, he said that he is ‘requesting compliance with the Tribunal’s orders.’^[26] On any view, that is an enforcement request in other words.
38. [38]
    The clear premise of Mr Fisher’s enforcement request is that the Tribunal’s orders are enforceable. That of itself defeats the renewal application.
39. [39]
    As appears from transcript of the Tribunal final hearing on 24 April 2018, Mr Fisher said that he had commenced enforcement proceedings in the Magistrates Court,^[27] though, on further questioning he admitted that he hadn’t yet commenced enforcement proceedings in the Magistrates Court.^[28] That does not assist his credibility.
40. [40]
    The Tribunal’s powers are limited by the QCAT Act which creates it. The Tribunal must always take care not to overreach or exceed its jurisdiction because orders made beyond jurisdiction would be null and void as Mr and Mrs Fisher already know from my 2016 decision in Fisher v Wenzel & Anor.^[29]
41. [41]
    Applying to the Tribunal for an order that it enforce its own decision where it has no jurisdiction to do so is an abuse of process. Mr and Mrs Fisher also know from my 2016 decision^[30] that bringing legal proceedings which are inevitably bound to fail is an abuse of process.
42. [42]
    On 12 March 2018, in the course of these proceedings, Mr and Mrs Fisher purported to broaden the substance and scope of the relief sought without asking leave of the Tribunal for that purpose.
43. [43]
    They did so by filing a document entitled ‘Appendix A – Relief Claimed by Applicant.’^[31] I am prepared to accept that a request for leave is implied. In Appendix A, Mr and Mrs Fisher seek orders that Mr and Mrs Wenzel:

… engage such contractors as required to perform fencing works and bear the full costs to modify 4 sections of concrete tilt up fence by reducing the height of various panels and sections of panels, removing reinforcing, repairing damage to remainder panels, patching and sanding piers.

44. [44]
    It is apparent from this narrative that Mr and Mrs Fisher want the Tribunal to vary the final fencing orders dated 13 July 2017 to better suit them by ordering modification of the four sections of fence to which they now refer. Apparently, that also is the reason why they want the proceedings reopened.
45. [45]
    In Appendix B – Particulars of Claim which follows in the same document, Mr and Mrs Fisher assert that the fencing works undertaken by Mr and Mrs Wenzel breached the Tribunal’s orders made on 13 July 2017. If true, that too is an enforcement issue beyond Tribunal jurisdiction.
46. [46]
    Under the heading ‘The Height Modification Orders sought’ in Appendix B, Mr and Mrs Fisher seek horizontal height reduction orders ‘in the same manner that surrounding fences in the area are constructed’ and ‘for aesthetics,’ even where the fence height does not exceed 2.2 metres ‘adjacent to the road.’
47. [47]
    Mr and Mrs Fisher have not provided any particularity or evidence of the ‘manner’ of construction of other neighbourhood ‘surrounding fences’ for purposes of the height reduction orders sought. In general terms though, they want variation of orders for better dividing fence aesthetics consistent with unstated neighbourhood criteria because they are unhappy with ‘the Great Wall of China.’
48. [48]
    Mr and Mrs Fisher also assert in Appendix B that the contractor is in breach of the terms of the quotation because the 2.2 metre panel fence installed does not actually sit on ‘original footings’ in natural ground.
49. [49]
    They say that, to determine whether or not the fence is height compliant, its height is to be measured from the top of the fence down to original ‘natural ground’ below existing ground level. Mr Fisher refers in this regard to the remnants of original footings for another fence in natural ground which he ascertained by digging below the surface to find evidence for his surveyor, Mr Henderson, to support his case.^[32]
50. [50]
    However, as will appear from what follows, Mr and Mrs Fisher’s claims and assertions in this regard are untenable.
51. [51]
    Firstly, the language of the Tuf quotation vested the fencing contractor with a discretion regarding the final positioning of the fence and footings according to the lie of the land in all of the circumstances although not specifically those words. It did not oblige Tuf to construct the fence on old footings in subterranean natural ground.
52. [52]
    Secondly, the fencing contractor’s discretion was not expressed to be, and nor was it, qualified by reference to any collateral document such as, for example, a contour survey by E.A. Hayes^[33] of the original lie of the land dated 29 May 2001, now relied upon by Mr Fisher to support his application.
53. [53]
    As appears from Mr Fisher’s affidavit sworn 12 March 2018, he and Mrs Fisher first informed Stuart Kelly, Tuf’s manager, of the fact and content of the E.A. Hayes contour survey in an email dated 22 August 2017^[34] just before fencing works commenced. That was more than a month after the Tribunal’s final orders dated 13 July 2018 and more than a year after the quotation came into existence on 11 April 2017.
54. [54]
    There is therefore no credible evidentiary basis to support Mr and Mrs Fisher’s suggestion that the E.A. Hayes contour plan was somehow collateral to, and/or incorporated as a term in, the Tuf quotation and the Tribunal’s final fencing orders. Mr Fisher’s assertion that reference to ‘natural ground levels’ in the Tuf quotation must be construed as meaning the original ground level established by contour surveyor E.A. Hayes sixteen years previously lacks any credible foundation.
55. [55]
    Thirdly, ‘natural ground level’ is not a term of art. All ground which is not artificial is, by definition, natural. What is natural ground will mean different things to different people according to their qualification and expertise.
56. [56]
    Tuf and Mr Kelly are not surveyors or geotechnical engineers. Mr Kelly, author of the Tuf quotation, is a tradesman as Mr Fisher knows from his own investigations.^[35] Mr Kelly only holds a Trade Contractor Licence for Concreting issued by the QBCC.^[36] As I have already said, there is no credible basis upon which to impute knowledge of the E.A. Hayes contour survey to Mr Kelly at the date of the quotation.
57. [57]
    Fourthly and in any event, Mr E.A. Hayes carried out his contour survey during subdivision of an early stage of The Sovereign Islands before Mr and Mrs Fisher’s house was built.^[37] Mr and Mrs Fisher have not produced any contour survey performed subsequent to the construction of their substantial home and a swimming pool.
58. [58]
    Mr and Mrs Fisher have also not accounted for the landscaping works recently undertaken by Mr Fisher after completion of the dividing fence. Landscaping, including a new soil bed and plants, abutting the completed, painted dividing fence on the Fisher property are clearly evident in the photograph which is exhibit C2 to the affidavit of Mr Kelly.^[38]
59. [59]
    Fifthly, Mr Fisher’s terminology includes reference to ‘original natural surface’^[39] that he said would have to be ascertained by reference to the contour plan. When I asked Mr Fisher how he knew that contours had not subsequently changed he answered that it did not matter because to find the original surface one would have to revert to the E.A. Hayes contour plan.^[40]
60. [60]
    Mr Fisher’s response did not answer my question. If Mr Fisher were correct in his assertion, which he is not, then part of the 2.2 metre high panel fencing would actually be, and be required to be, underground, reducing the above ground fence height rather than increasing it.
61. [61]
    Sixthly, in paragraph 1 of his affidavit sworn on 19 March 2018, Mr Kelly said, and I accept, that:

I need to clarify that our interpretation of natural ground level is at a level where the soil is located immediately under the turf or mulch and generally requires an implement to dig down into it. Mr Fisher seems to think this is up to 400mm below the ground height. If one wants to assume true natural ground heights on the Sovereign Islands perhaps we need to revert to the mangrove levels they once were.^[41]

62. [62]
    Seventhly, underlying the Tribunal’s orders dated 13 July 2017 though not referred to in them, was a memorandum of terms of settlement^[42] written and signed by the parties themselves after they had negotiated a settlement agreement outside of the Tribunal toward the end of the hearing when I stood the matter down for that purpose.
63. [63]
    In those terms of settlement, the parties agreed that Tuf would construct the fence to a height of 2.2 metres to be stepped down 1800 x 2000 x 2200 ‘in height of equal proportions – 1800 in height to the western end’^[43] on the agreed common boundary and that the parties would ‘finish the concrete fence to their own choice of render and colour at their own cost.’^[44]
64. [64]
    Mr Fisher said that Mr Wenzel unilaterally dispensed with the step down of the fence in discussion, i.e. without his agreement^[45] and that he did not at any time agree to a variation of the overall 2.2 metre height of the fence as ordered.^[46]
65. [65]
    However, Mr Fisher’s evidence in this regard is improbable when weighed against the evidence^[47] of Mr Kelly who says, and I accept, that he met with Mr Wenzel and Mr Fisher on site to do the footings which set the height of the 2200mm fence panels and that he ‘excavated out to the existing footing of the old fence’ and ran levels through each footing to establish the height of the new dividing fence and where each panel would start and stop.
66. [66]
    Eighthly, Mr Kelly says, and I accept, that the step downs in the design were discussed on site with, and agreed to by, both Mr Fisher and Mr Wenzel^[48] there and then and that, from this point, he set the footing as agreed on the day for installation of the 2200mm high fence panels^[49] which were installed on 24 October 2017 with no interference from any party.^[50]
67. [67]
    Mr Kelly says, and I accept, particularly because Mr Fisher does not deny it, that Mr Fisher proceeded immediately to render and paint his side of the dividing fence^[51] and that he received no complaint from Mr Fisher at any time, whether during or after completion concerning the height of the fence.
68. [68]
    Mr Kelly asks, rhetorically, why Mr Fisher would proceed to render and paint his side of the fence to completion whilst saying nothing to Mr Kelly and his staff about alleged non compliance.^[52] Why indeed, unless Mr and Mrs Fisher were happy with the resultant dividing fence as it was constructed until Mr Wenzel called on them to pay their contribution as the evidence establishes.
69. [69]
    Ninthly, though monitoring erection of the fence daily and having made no objection to the location of the new footings and the height of the precast concrete fence as it was being erected and having taken no steps between October and 29 November 2017 to restrain continuation of the fencing works to completion, Mr and Mrs Fisher acquiesced in the work done and the height of the fence as constructed and are consequently estopped by conduct from asserting to the contrary.
70. [70]
    I find that Mr Kelly completed Tuf’s contractual obligations with relative neutrality and equanimity, notwithstanding the acrimonious relationship between neighbours about which he had been forewarned and some interference and provocation from Mr and Mrs Fisher to which he referred.^[53] Therefore, wherever there is a conflict between Mr Kelly’s evidence, and that of Mr and Mrs Fisher, I prefer his to theirs.
71. [71]
    I turn now to consider Mr and Mrs Fisher’s specialist evidence with respect to the height of the fence as constructed by Mr Kelly of Tuf which Mr and Mrs Fisher allege breaches the terms of the Tribunal’s final orders dated 13 July 2017.
72. [72]
    Insofar as Mr Fisher says that the fence height exceeds 2.2 metres ‘as constructed,’ he relies on a ‘Plan of Building and Fence Location’ drawn by surveyor Scott Henderson (‘the Henderson Plan’) plotting the height of the fence above ‘original natural surface’ and other levels at various points.
73. [73]
    The Henderson Plan, marked exhibit O, is variously referred to in paragraph 20 of the affidavit of Mr Fisher sworn 23 March 2018 filed on 17 April 2018 and in paragraph 33 of his affidavit sworn on 12 March 2018 apparently in anticipation of its production. The same document is to be found elsewhere on the Tribunal file and marked as Exhibit N.
74. [74]
    Insofar as the onus of proof is concerned, Mr and Mrs Fisher did not file any affidavit of Mr Henderson. Mr Fisher just relied on the Henderson Plan as an exhibit to his affidavit. He objected to Mr Wenzel speaking directly with the surveyor. When approached directly, Mr Henderson told Mr Wenzel that Mr Fisher had instructed him not to provide any documents or discuss the survey in any way.^[54]
75. [75]
    Mr Fisher’s obstructive behaviour included refusing Mr Wenzel’s request for an onsite meeting with Mr Henderson to clarify the content and assumptions of the Plan and instructing Mr Henderson not to talk to Mr Wenzel.^[55] Questions to be asked of Mr Henderson would have to be put through the Fishers’ solicitors for a response in writing. There is no expert report referring to his investigations and findings.
76. [76]
    I may, and I do, therefore draw the inference^[56] that any sworn evidence of Mr Henderson will likely not have assisted Mr and Mrs Fisher’s case about the dividing fence height as constructed.
77. [77]
    Mr Henderson’s Plan is premised upon information in the E.A. Hayes contour survey as appears from the legend in the Plan which says that:

Chainage & RL of Original Natural Surface Shots from Contour Survey Undertaken by Surveyor W A Hayes and Assoc. 29-05-2001… prior to the construction of the Existing Residence on the subject Lot. My survey has adopted the same TBM Spike in Bitumen for level datum (RL 2.952 AHD).

The legend also refers to other E A Hayes survey aspects.

78. [78]
    I am left to infer that Mr Henderson assumed current accuracy of a contour plan drawn by E.A. Hayes in 2001 and that the contours of the land had not changed subsequently. Mr and Mrs Fisher’s failure to produce Mr Henderson as a witness precluded him being questioned by Mr and Mrs Wenzel about assumptions and other aspects of the Plan.
79. [79]
    The Henderson Plan is not an easy document for a non surveyor to read and understand in isolation. There is the legend and Mr Henderson explains his methodology concerning the content of exhibit O in exhibit E to Mr Fisher’s affidavit sworn 17 April 2018 ‘in response to a request contained in an email received 19-03-2018 from Emma Sutton HW Litigation.’ But that is all.
80. [80]
    HW Litigation act for Mr and Mrs Fisher. It was through that firm of solicitors that Mr Fisher insisted Mr Wenzel put his questions to Mr Henderson. The questions asked are set out in exhibits O4 to O5 to the affidavit of Mr Wenzel sworn on 23 March 2018. They sought clarification of the ‘5 readings associated with each point’ on the Henderson plan.
81. [81]
    Mr Henderson’s response (exhibit E to Mr Fisher’s affidavit sworn 20 March 2018) to Mr Wenzel’s questions contains no expert conclusion that the dividing fence on the common boundary of the adjoining properties of the parties as constructed by Tuf Concrete Fencing is, whether as to height or otherwise from a surveyor’s point of view, non compliant with the Tribunal’s orders dated 13 July 2017.
82. [82]
    In looking at the five reference points in Mr Henderson’s plan, reading from left (the Excalibur Court end) to right (the canal end) the dividing fence has three different heights as measured from the top on Lots 21 and 22 respectively at each reference point. However, a dividing fence, properly measured, can only have one height, i.e. its real height above ground measured in accordance with legislative provisions.
83. [83]
    Depending on the lowest point from which the measurements are ascertained, the Henderson Plan plots the height of the dividing fence at these five points as (and I quote):

Point 1: Lot 21 – 2.015m; Lot 22 – 1.88m; Above Original Footing 2.21m; Above original Natural Surface – 1.92m.

Point 2: Lot 21 – 2.13m; Lot 22 – 2.04m; Above Original Footing 2.40m; Above original Natural Surface – 2.18m.

Point 3: Lot 21 – 2.16m; Lot 22 – 2.08m; Above Original Footing 2.475m; Above original Natural Surface – 2.28m.

Point 4: Lot 21 – 2.22m; Lot 22 – 2.13m; Above Original Footing 2.517m; Above original Natural Surface – 2.33m.

Point 5: Lot 21 – 2.035m; Lot 22 – 2.35m; Above Original Footing 2.76m; Above original Natural Surface – 2.565m.

84. [84]
    It seems to me that reference to fence height above ‘original footings’ apparently ascertained by Mr Fisher having dug down to them to show to Mr Henderson is a red herring and irrelevant to the question of the actual fence height above ground as constructed just as is reference in the Henderson Plan to subterranean ‘original natural surface.’
85. [85]
    Why Mr Henderson would confine his investigation to just five reference points is unexplained. I am left to infer that this is what Mr Fisher asked him to do.
86. [86]
    There is no evidence from the surveyor or from anyone else from Mr and Mrs Fisher’s side concerning how, practically, the footings and step downs could have been otherwise positioned so as to achieve another more preferable outcome consistent with the Tuf quotation and the Tribunal’s orders and the fall of the land on the common boundary from street side to canal front of 450mm referred to by Mr Fisher.^[57]
87. [87]
    Insofar as the Henderson Plan may be said to prove anything at all in this case, it establishes the height of the dividing fence at each of the 5 reference points on the Wenzel (Lot 21) side as between 2.015 metres and 2.22 metres and on the Fisher (Lot 22) side at between 1.88 metres and 2.35 metres above ground (my emphasis).
88. [88]
    To that extent, the Henderson Plan evidences that the fence substantially complies with the terms of the Tribunal’s fencing orders dated 13 July 2017 and the Tuf quotation and specification of measurements which were expressly ‘more or less.’
89. [89]
    Another specialist relied on by Mr and Mrs Fisher is Noel Henning trading as Queensland Building Inspections who produced a report^[58] which is incomplete as filed with the Tribunal.
90. [90]
    It is evident that Mr Fisher instructed Mr Henning to determine if the Tribunal’s orders concerning the fence height had been breached and that he was present at Mr Henning’s inspection of the dividing fence on 21 November 2017.
91. [91]
    Again, as with Mr Henderson, there is no affidavit of Mr Henning. He did not attend the hearing. He made no mention in the incomplete pages of his report of any attempt to physically measure the fence height above actual footings. One might reasonably assume that this would be his starting point and also reasonably ask why it was not. There is no answer.
92. [92]
    In the summary page of his report, Mr Henning says:

Using surveyor contour data (sic) from the established natural ground level, it was found that the agreed max height had been ignored with it measuring, at maximum, 280 mm over the agreed height… Please also refer to email from Mr Ron Fisher providing full contour information to the fence builder to comply with all current compliancy (sic) and agreements…

Step Downs have been constructed approx. (sic) to agreed 200mm, however the overall height of the fence is over the agreed 2.2m.

93. [93]
    I find that Mr Henning’s conclusions are unreliable. His report is incomplete. His conclusions are vague. He brought no independent expert mind to bear on the question of the actual fence height above ground. He relied on the out of date E.A. Hayes contour survey supplied to him by Mr Fisher.
94. [94]
    There is no sufficient basis for the conclusion to which Mr Henning refers in vague terms, i.e. that the ‘overall height of the fence is over the agreed 2.2m.’ and he appears to me to have assiduously avoided taking any tape measurements himself of the actual fence height above ground.
95. [95]
    I turn now to consider the legislative requirements for ascertaining fence height for dividing fences which are, in part or wholly, also a pool barrier.
96. [96]
    The provisions of the Building Act 1975 (Qld) apply where there is a swimming pool on each of the adjoining properties as the case in this matter. Mr and Mrs Fisher did not refer to it. Neither did Mr Henderson or Mr Henning.
97. [97]
    Insofar as measurement of the height of a dividing fence or pool barrier is concerned, section 245XX of the Act states that the height is to be measured using, for a provision that relates to a regulated pool on each of the 2 parcels of land, the shorter side of the fence or barrier, in this case Mr and Mrs Fisher’s side.
98. [98]
    Section 245XY of the Building Act 1975 (Qld) states that substantial compliance with any agreement, notice or order mentioned ‘in this part’ is adequate. The part referred to is Part 2A Neighbours rights and responsibilities for particular dividing fences.
99. [99]
    Included in Part 2A is section 245XQ which sets out the orders about carrying out fencing work that may be made by the Tribunal and section 245XN concerning contribution notices which might lead to a fencing agreement between parties in the negotiation period of one month after a notice to contribute is given.
100. [100]
     Mr and Mrs Fisher have not produced any evidence to prove that a surveyed fence height variance of between 1.88 metres and 2.35 metres on the Fisher side through the five reference points referred to in the Henderson Plan is in substantial non compliance with Tribunal orders dated 13 July 2017.
101. [101]
     Mr and Mrs Fisher have not produced any evidence to establish a breach of any provision in the Pool Safety Standard for pool barrier fencing which applies to the dividing fence in this case.
102. [102]
     Mr and Mrs Fisher have not produced any evidence to establish that the dividing fence constructed by Tuf breaches a provision of the Queensland Development Code (MP 3.4) for swimming pool barriers in any respect.
103. [103]
     All that Mr and Mrs Fisher did produce was an extract from that Code which accompanied a letter concerning pool fencing non compliance from the Gold Coast City Council dated 11 April 2017. The letter issued well before the Tuf dividing fence was installed.^[59] It is therefore irrelevant to this case.
104. [104]
     On the other hand, Mr Kelly’s evidence in this proceeding establishes that the dividing fence comprises precast 2.2 metre high concrete panels. As Mr Wenzel said in evidence, the panels do not sit in thin air. They rest on their footings as constructed by Mr Kelly.
105. [105]
     The footings laid by Mr Kelly in consultation and with the agreement of both neighbours are not the ‘original footings’ referred to in the Henderson plan and nor were they required by the fencing orders and the Tuf quotation to be so. There is no evidence of any gap between the base of the panels and their actual footings as laid by Mr Kelly.
106. [106]
     I therefore conclude that the dividing fence constructed by Mr Kelly in accordance with the Tuf quote substantially complies in all respects with order 2 of the Tribunal’s orders dated 13 July 2017.
107. [107]
     There is one other issue raised by Mr Fisher which requires consideration.
108. [108]
     Fence height aside, Mr Fisher said that the fence was not completed within 60 days of 13 July 2017 as ordered though the delay was ‘legitimate’^[60] due to illness of the contractor. Nothing turns on the delay except that it gave Mr and Mrs Fisher the advantage of more time to pay their contribution had they decided to do so.
109. [109]
     The issue of late completion of the dividing fence by Mr Kelly for good reason is therefore irrelevant to the enforceability of my orders dated 13 July 2017 and in no way affects the liability of Mr and Mrs Fisher to pay their share of the fencing costs as they were ordered to do.
110. [110]
     Mr Fisher also says that Mr Wenzel gave him Tuf’s invoice and Mr Wenzel’s bank account details on 29 November 2017 but ‘at no time did Mr Wenzel state the works were complete.’^[61] That is most improbable. At least, and in any event, Mr Wenzel’s supply of his bank account details to Mr Fisher when delivering a copy of the Tuf invoice for the completed fencing work implied a request for payment by Mr and Mrs Fisher of their half share.
111. [111]
     I also conclude that Mr and Mrs Fisher’s application was filed for the following impermissible collateral purpose. Mr Wenzel, whose evidence I accept in preference to that of Mr Fisher, said in paragraph 35 of his affidavit sworn on 23 March 2018 that:

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 the 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 29^th November 2017. Attached and marked “G” is a copy of this email.

112. [112]
     Exhibit G, the email referred to by Mr Wenzel, is also exhibit J to the affidavit of Mr Fisher sworn 12 March 2018. R & P Fisher sent it to Karina Wenzel at 12:02 on 29 November 2017. In it, Mr Fisher said that the height of the structure appeared to him to be not in accordance with the Tribunal order and that he had engaged Queensland Building Inspections to inspect and measure the fence and attached their report. Mr Fisher went on to say that:

It is good that we have been able to previously discuss and resolve some of the fencing and other matters, however several issues separate (sic) to the front section remain unresolved (sic). Our desire is to continue this process of discussion with a view to a (sic) amicable solution on the issues together with you rather than instigate enforcement (sic) action.

113. [113]
     Mr Fisher’s intention in sending that email after the discussion to which Mr Wenzel refers, 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 (the fence currently in dispute) previously discussed but still unresolved or face enforcement proceedings by him and his wife.
114. [114]
     Mr and Mrs Wenzel did not succumb to Mr Fisher’s demands which included that they waive the benefit of the ordered contribution. So Mr and Mrs Fisher carried out their threat by filing the renewal and/or reopening application on 16 February 2018. Therein lies the ulterior, predominant, impermissible collateral purpose^[62] of Mr and Mrs Fisher in bringing these proceedings. That amounts to an abuse of the Tribunal’s process.
115. [115]
     Recently quoted by Member Hughes of this Tribunal in the case of Felix v Winton & Anor [2018] QCATA 84, albeit in an entirely different factual context, is the following excerpt from Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217 (citations omitted):

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “…the public as a whole, not merely the parties to the proceedings.” Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.

116. [116]
     That quotation is pertinent in the present case.
117. [117]
     Mr and Mrs Fisher have not acted in their own best interests because they have brought an application which is vexatious and an abuse of the Tribunal’s process. They have unnecessarily used up the Tribunal’s time and resources. Their application for renewal of the Tribunal’s orders and/or for a reopening is not supported by credible evidence. Its failure was inevitable in the circumstances to which I have referred. It has been an expensive and unnecessary exercise in futility. They have unnecessarily inconvenienced Mr and Mrs Wenzel and put them to considerable further expense for which they have no compensatory or restorative remedy in this Tribunal. The Tribunal has no jurisdiction to award damages for a common law intentional tort.^[63]
118. [118]
     Insofar as the application for renewal is concerned, I find that it is possible for the Tribunal’s decision dated 13 July 2017 to be complied with and it is only Mr and Mrs Fisher who have not complied with it by paying their contribution as ordered. There are no problems with interpreting, implementing or enforcing the Tribunal’s decision. Mr and Mrs Wenzel’s enforcement proceedings in the Magistrates Court may therefore proceed to finality.
119. [119]
     Insofar as the application for reopening is concerned, no reopening ground has been established by Mr and Mrs Fisher.
120. [120]
     I therefore order as follows:

     1. (a)
        Leave to extend the time for filing the application for renewal and/or reopening is refused.
     2. (b)
        Leave to amend the application in terms of Appendices A and B filed on 12 March 2018 is refused.
     3. (c)
        The application for renewal and/or reopening is dismissed pursuant to sections 47 and 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).