Fisher v Wenzel (No. 2)[2018] QCAT 298

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Ronald Eric Fisher (Mr Fisher) filed an application for minor civil dispute – dividing fences with the Tribunal on 26 February 2018 against the respondents, Christian Wenzel and Karina Wenzel (Mr and Mrs Wenzel), next door neighbours of Mr and Mrs Fisher in Excalibur Court at The Sovereign Islands. Mr and Mrs Wenzel are registered owners of Lot 21 on RP 215035 at Excalibur Court.
2. [2]
   Mr Fisher is, and at all material times was, co-registered owner of Lot 22 on RP 215305 together with his wife, Pamela Fisher. Mrs Fisher is therefore an interested person potentially affected by this decision so I made an order joining her as an applicant in the proceedings on 19 April 2018. I heard oral evidence from the parties on 24 April 2018 when some documents additional to those already filed were tendered.
3. [3]
   There is a pool on each of the properties. The provisions of Part 2A – Neighbours’ rights and responsibilities for particular dividing fences of Chapter 8 of the Building Act 1975 (the Building Act) therefore apply in this case.
4. [4]
   In particular, though not referred to or relied on by Mr and Mrs Fisher in their application, the following provisions of the Building Act are potentially relevant: section 245XV(4) for rectification works, section 245XJ for compensation for damage to a dividing fence, section 245XQ(1)(k) for compensation for destruction of a dividing fence, and section 245XQ(1)(l) for the undertaking of matters necessary for the administration of Part 2A of Chapter 8.
5. [5]
   In their application filed on 26 February 2018, Mr Fisher, and Mrs Fisher by joinder, applied for orders to be made for prevention of construction or demolition of a dividing fence without authorisation, for rectification work, for the cost of rectification, and for payment of the filing fee of $25.45.
6. [6]
   Mr Fisher himself also applied on 26 February 2018 for an interim order restraining Mr and Mrs Wenzel from demolishing or altering a dividing fence. A Member of the Tribunal refused that application.
7. [7]
   Mr and Mrs Wenzel received the refusal order long before being served with the applications filed by Mr Fisher on 26 February 2018. According to his affidavit of service, Mr Fisher mailed them to his neighbours on 5 March 2018 instead of serving them by delivery next door. Several days passed before they arrived at Mr and Mrs Wenzel’s Excalibur Court address.
8. [8]
   It is not disputed that Mr Wenzel cut back, and removed, approximately two thirds of a concrete corner column which he says encroached on Lot 21. However, Mr Fisher denied the alleged encroachment. He said that the whole of the corner column was part of the dividing fence on the common boundary of the adjoining properties.
9. [9]
   In cutting back the column on the diagonal in this way, Mr Wenzel left one third of the corner column standing on the east/west common boundary as an extension of the dividing fence constructed in accordance with the Tribunal’s fencing orders dated 13 July 2017 in MCDO 559/17.
10. [10]
    The terms of those fencing orders are not in dispute in the present proceeding (MCDO 149/18) though, on 6 August 2018, I dismissed an application by Mr and Mrs Fisher for renewal of those orders and/or for a reopening. My decision and reasons have been separately published.
11. [11]
    It is also not disputed that, before cutting back the corner column to the extent of the alleged encroachment, Mr Wenzel removed a concrete cap located on top of the original column and an external downlight on the face of the section of the column to be cut back together with associated electrical wiring.^[1]
12. [12]
    Mr Wenzel left the downlight and wiring on the Fisher property and later returned the column cap to Mr Fisher. In other words, there is nothing left for Mr Wenzel to return.
13. [13]
    Having heard the parties’ oral evidence and having read the documents filed by them, I am satisfied on the balance of probabilities that the section of the corner column cut away and removed by Mr Wenzel, which included the downlight and associated electrical wiring, did diagonally encroach on the Wenzel property^[2] and that Mr and Mrs Fisher were given prior notice to remove the encroachment^[3] which they ignored.
14. [14]
    Mr and Mrs Wenzel have since had a stone clad dividing fence constructed on the north/south common boundary of their property and the adjoining land of the Gold Coast City Council. It neatly abuts the cut back corner column and is slightly higher.
15. [15]
    I am satisfied that it was necessary to cut the corner column back in the way that Mr Wenzel did because Mr and Mrs Wenzel were trying at the time to build their street frontage fence which they could not otherwise align with the diagonal of the encroaching part of the corner column.^[4]
16. [16]
    I am also satisfied that the cut back corner column could no longer support the cap unless it too was cut back commensurately with the way the column was cut. Otherwise, it would intersect with, and intrude diagonally into, the face of the higher street front fence on the common boundary of the Wenzel and Gold Coast City Council properties.
17. [17]
    There is no dispute that there was a survey pin in the cap which Mr Wenzel removed. It is still located in the cap. Whether the pin was merely a survey reference point or rather a boundary peg is unclear on the insufficient evidence in this regard from Mr and Mrs Fisher.
18. [18]
    Mr and Mrs Fisher say that another survey may be required at some time in the future. However, I find that there is no evidence to establish that the residual column as cut back does not sit on the common boundary of the adjoining properties. In fact, it does.
19. [19]
    Insofar as Mr and Mrs Fisher’s expert evidence is concerned, they did file a plan of building and fence location (the Henderson Plan) drawn by Scott Henderson, a cadastral surveyor, in MCDO559/17 but they did not file or rely on a surveyor’s report or affidavit from Mr Henderson in those proceedings or in these proceedings.
20. [20]
    The Henderson Plan, which is marked exhibit O to an affidavit from Mr Fisher sworn on 12 March 2018 in MCDO559/17, surveyed the height of the dividing fence at five points but it did not purport to survey the position, height and dimensions of the corner column to which the present application relates.
21. [21]
    There is just an outline depiction in the Henderson Plan of the diagonal positioning of the corner column as it originally stood, consistently with Mr Wenzel’s evidence, but that is all. Therefore, the Henderson Plan does not relevantly assist Mr and Mrs Fisher in this case.
22. [22]
    Mr and Mrs Fisher also filed and relied on an extract (page four of nine only) of a report by Noel Henning t/a Queensland Building Inspections but did not obtain an affidavit from him. There is no reference, in the page filed, to Mr Henning’s qualifications and experience.
23. [23]
    The single page from Mr Henning’s report refers to ‘8) Easter Side Boundary Findings’ and to ‘… the recent re-survey check markings from a certified surveyor.’ However Mr Henning does not identify the ‘certified surveyor’ whose ‘findings’ he quotes and which, through him, are hearsay. The document containing the findings is not appended or filed with the Tribunal and one is left to speculate who authored the reported findings.
24. [24]
    Filing only one of nine pages of an expert report without any associated documents is problematic for Mr and Mrs Fisher who chose to do that. They are bound by the way in which they conducted their case. It was not for the Tribunal to run their case for them.
25. [25]
    Though not bound by the rules of evidence, I am not prepared to accept Mr Henning’s documentary hearsay evidence in the circumstances. His conclusions in the one isolated page produced by Mr and Mrs Fisher are unreliable. Insofar as he may be understood as referring to the corner column the subject of this proceeding, I do not accept Mr Henning’s unsubstantiated statement that ‘...the western street end of the existing dividing fence line (sic) was shared virtually equally at the boundary.’
26. [26]
    Mr and Mrs Fisher’s application therefore fails for lack of evidence but it also fails for the following reasons.
27. [27]
    Firstly, Mr and Mrs Wenzel’s cutting back the encroaching part of the corner column in the vertical plane did not entirely remove the column itself. As I have already found, it still stands as the end point of the dividing fence. There is no evidence that its structural integrity has been compromised. Its reduced width apparently coincides, at least, with the width of the newly constructed dividing fence on the east/west common boundary of the adjoining properties.
28. [28]
    Secondly, though this Tribunal has no jurisdiction to make orders with respect to encroachments, the fact of an encroachment and evidence of its removal may be taken into account in deciding whether or not a fencing rectification order should be made. The Tribunal may exercise its discretion not to make any order other than dismissal in circumstances such as this.
29. [29]
    Thirdly, because the cutback of the column left standing that part of the column which forms the end of the dividing fence on the common boundary of the parties’ adjoining properties, the dividing fence has not been damaged in any relevant sense except insofar as the cap on top of the column has been removed out of necessity for the reasons to which I have already referred. That does not require Tribunal intervention.
30. [30]
    Fourthly, any order that I might make concerning reinstatement of a part of the removed cap (if cut back) on top of the original corner column would lack utility because it would have to affixed eccentrically to the top of the cut back column with negative structural and aesthetic consequences. Mr and Mrs Fisher did not produce any evidence from an architect or engineer or anyone else to explain how that outcome might be avoided.
31. [31]
    Fifthly, whilst I accept that the absence of a full corner column and cap at the termination of the Excalibur Street end of the east/west dividing fence is now architecturally asymmetrical with the other columns and wrought iron work on the north/south boundary of the their property with the Gold Coast City Council land, that situation is remediable by Mr and Mrs Fisher constructing a new concrete column with cap immediately to the right (looking from the street side) of the cut back corner column consistently with the dimensions and height of the other columns to the south (or as otherwise advised) in a way that does not cause the cap returned by Mr Wenzel and replaced to  intersect with the Wenzel’s new street front stone clad fence.
32. [32]
    However any such aesthetically remedial construction work is not work which Mr and Mrs Wenzel should have to pay for because it flows from the removal of the encroaching part of the corner column on the Wenzel land and relates only to a dividing fence on the common boundary of the Fisher and Gold Coast City Council properties for which Mr and Mrs Wenzel would have no liability to contribute in the circumstances.
33. [33]
    Section 13(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), with which the Building Act coincides, requires that I make a decision in this minor civil dispute matter that I consider is fair and equitable to the parties in order to resolve the dispute but I may, if I consider it appropriate, make an order dismissing the application. I do consider it appropriate in all the circumstances to dismiss the application.
34. [34]
    I therefore order that the application filed on 26 February 2018 is dismissed.