Marshall v Twidale[2021] QCAT 414

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

1. [1]
   The Applicant is the registered owner of land in Ashgrove, Queensland. The Respondent is the registered owner of land which shares a common side boundary with the Applicant’s land.
2. [2]
   The Applicant filed an Application for minor civil dispute – dividing fences in Form 53 on 20 September 2021 (the Application) seeking orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the Act), as well as an Application for interim order on Form 41. 
3. [3]
   Prior to this dispute, a weldmesh fence was considered by both parties to be a sufficient dividing fence between the properties. 

The events leading to the dispute

4. [4]
   The Applicant has undertaken building work which included a change to the existing ground levels of the property. The Applicant considered the existing weldmesh dividing fence (the weldmesh fence) was no longer suitable and that a retaining wall was required with a timber paling fence on top (the new fence).
5. [5]
   The Applicant proposed paying for the complete replacement cost of the weldmesh fence and had already met the cost of surveying the boundary (undertaken in July 2020) between the properties.
6. [6]
   The Respondent would not agree to the weldmesh fence being removed unless the proposed works did not disturb the footings of the weldmesh fence. 
7. [7]
   The Applicant then withdrew the offer to meet the cost of the removal and replacement of the weldmesh fence.
8. [8]
   On 24 October 2020, the Applicant advised the Respondent that a new timber fence and retaining wall would be built entirely within her property, leaving the weldmesh fence undisturbed.
9. [9]
   The new retaining wall and fence was built inside the Applicant’s property.
10. [10]
    The Respondent removed some panels of the weldmesh fence and extended the area of his side gate into the Applicant’s property, attaching his extended side fence to the new timber fence. 
11. [11]
    [Redacted] an interim Tribunal order was made on 20 September 2021 that the Respondent not ‘remove, alter, demolish or in any way interfere with the dividing fence between the Applicant’s and Respondent’s properties...’.  A further order was made at the hearing preventing the Respondent from removing any more of the weldmesh fence until the application was decided and QCAT ordered further.

Orders sought by the Applicant

12. [12]
    The Applicant seeks an order to prevent the removal or alteration of the weldmesh fence, and an order that the new fence is within the Applicant’s property.
13. [13]
    If the tribunal finds the new fence a sufficient dividing fence, the Applicant seeks an order for half the cost of erecting the new fence, ongoing contribution to the upkeep of the new fence; compensation for the loss of the Applicant’s land which, through adverse possession by the Respondent, would effectively become part of the Respondent’s property if the weldmesh fence was removed.

The evidence

Is the fence built by the Applicant on the surveyed boundary?

14. [14]
    There is strong survey and photographic evidence that the new fence is well within the Applicant’s property and away from the surveyed boundary line. The Respondent’s assertion that the fence is on the surveyed boundary does not make it so.  Similarly, the Respondent’s photographs taken from an angle which make the new fence appear to be close to the boundary do not make it so.
15. [15]
    The Applicant’s photos clearly show that the extended side fence from the Respondent’s property is at least the distance of four paling widths from the weldmesh fence (300 mm to 400 mm). The new fence is shown to be inside the Applicant’s property by at least this distance.
16. [16]
    Similarly, the photograph of the survey marker in the back corner between the properties shows that the new fence is approximately 600 mm inside the Applicant’s property.

Is there an existing sufficient dividing fence?

17. [17]
    The weldmesh fence was considered by both parties to be a sufficient dividing fence between the properties for the time that the parties have been neighbours, pursuant to section 13(c)(i) of the Act.^[1] 

The new retaining wall and timber fence is within the Applicant’s property, at a distance which runs from approximately 600 mm at the back corner to approximately 20 mm – 30 mm at the front behind the garage, shown by photographic evidence adduced by the Applicant.

The boundary survey has determined that the weldmesh fence sits just inside the Respondent’s property, such that it would not be practically possible to build another fence on the boundary.  I am satisfied that the weldmesh fence is a sufficient dividing fence between the properties of the Applicant and the Respondent, pursuant to sections 13(1)(c)(ii)^[2] and 13(2)^[3] of the Act.

Respondent’s response

18. [18]
    The Respondent seeks the right to paint his side of the new fence. The Respondent must fail in this request because the new fence is entirely within the boundary of the Applicant’s property.  The new fence is not a sufficient dividing fence between the properties.
19. [19]
    It follows then that Respondent is committing a trespass by attaching his side fence extension to the new fence.  The side fence extension must be removed.
20. [20]
    The Respondent also sought from the Tribunal an order that the weldmesh fence is not a sufficient dividing fence between the properties; and that the Tribunal order that the front boundary marker should be reinstated at the Applicant’s cost.
21. [21]
    The Respondent fails in these requests of the Tribunal. The Respondent is free to engage a surveyor at his sole cost to reinstate the front marker should he so choose.
22. [22]
    The Respondent’s reference to Cordingley v Jarvis^[4] to claim the Tribunal has no jurisdiction in this matter is misconceived.  The fence built by the Applicant is not a sufficient dividing fence, it is the Applicant’s fence.

Can costs be awarded to the Respondent based on Thompson v Cannon [2020] QCAT 109?

23. [23]
    The Respondent seeks to be reimbursed for his legal costs based on Thompson v Cannon.^[5]  Notwithstanding that the Respondent has not provided any evidence of said legal costs, the general rule is that parties bear their own costs in the Tribunal.
24. [24]
    The case referred to by the Respondent as authority for his claim for legal costs is in the Occupational Regulation and Discipline jurisdiction of QCAT.  In this jurisdiction, Respondents’ may have legal representation as of right due to the nature and complexity of the proceedings.
25. [25]
    Rule 83 of the Queensland Civil and Administrative Tribunal Rules 2009 permits the Tribunal to order costs against a party to a proceeding for a minor civil dispute other than a minor debt claim only if the party is a respondent against whom the tribunal has made a final decision; and (b) only to order the party to pay to the applicant the amount of any prescribed fee paid by the applicant on filing the application for the proceeding.^[6]

Orders

1. The Respondent must remove the attachment to the Applicant’s fence and reinstate that part of the fence which he removed within 21 days of the date of this order.
2. If Order 1 is not complied with the Applicant is entitled to have the work performed by a suitably licensed contractor.
3. Should the Applicant be required to carry out work to reinstate that part of the sufficient dividing fence removed by the Respondent in default of it being done by the Respondent, the suitably licensed contractor shall be entitled to enter the Respondent’s property to carry out the work subject to the Applicant giving 14 days written notice of that intention to the Respondent.
4. The costs incurred by the Applicant in engaging a suitably licensed contractor to reinstate the sufficient dividing fence in default of the Respondent reinstating it are recoverable from the Respondent as a debt without further notice to the Respondent.
5. The Respondent to pay to the Applicant the amount of $27.90, being the filing fee for this Application, within 7 days of the date of this order.
6. Liberty to apply.