Zacaropoulos v Davison[2022] QCAT 257

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This matter started with the Respondent being Little Real Estate (Qld) Pty Ltd. By Order of the Tribunal dated 22 April 2022 the Respondent in this matter was changed to Bohdan Davison.
2. [2]
   Mr Zacaropoulos is the owner of a private residence at 32 Coachella Crescent Upper Coomera, and Mr Davison is the owner of the adjoining private residence at 34 Coachella Crescent.
3. [3]
   Between these two properties is an existing timber paling fence and a contiguous small retaining wall comprising horizontal timber sleepers restrained by small vertical posts.
4. [4]
   Mr Zacaropoulos seeks the intervention of the Tribunal to require the parties to contribute to the rehabilitation of the retaining wall and replacement of the existing fence.

Facts

5. [5]
   The retaining wall between the properties varies in height between approximately 200mm and 500mm.
6. [6]
   The evidence shows that there is a gently falling slope from the northern boundary of 34 Coachella Crescent to 32 Coachella Crescent, with the slope continuing southward.
7. [7]
   Mr Zacaropoulos’ residence at 32 Coachella Crescent was built before Mr Davison’s residence at 34 Coachella Crescent. Mr Davison’s residence at 34 Coachella Crescent was completed in August 2013.^[1]
8. [8]
   The fence between the properties had been constructed and was in place before the house at 34 Coachella Crescent was built.

The relevant law

9. [9]
   The relevant legislation, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDA), requires that the owner requesting work be completed on a fence must give the adjoining owner a notice to contribute in the approved from and provide specific details.^[2] Mr Davison disputes that Mr Zacaropoulos has complied with these provisions.
10. [10]
    However, this dispute existed for over twelve months before the date of the hearing and the nature and details of the dispute are well known and understood by the parties. Section 91 of the NDA states that “Substantial compliance with any agreement, notice or order mentioned in this Act is adequate for this Act.” I am satisfied that any possible defect in notices issued by Mr Zacaropoulos is not fatal to his application here, and that there has been substantial compliance concerning notices for the purposes of the NDA.
11. [11]
    The Tribunal’s jurisdiction as it concerns this matter is restricted to fences and, as defined by s 11(2)(a) of the NDA, a retaining wall is not a fence.
12. [12]
    The NDA defines a retaining wall as a structure that supports excavated or filled earth.^[3]
13. [13]
    Recognising that it may be impossible in some instances to distinguish between fencing work and associated works, the NDA provides that the Tribunal may, for an application in relation to fencing work for a dividing fence, decide and order any other work to be carried out that is necessary to carry out the fencing work ordered under this section including work for a retaining wall.^[4]
14. [14]
    In White v Steer,^[5] the Tribunal said, in its appeal jurisdiction:

The NDA gives the tribunal jurisdiction to make orders about fencing work. It is clear the tribunal has no jurisdiction to make orders about retaining walls other than as an adjunct to an order about fencing work pursuant to s 35. It is an ancillary power only.

The limit of that ancillary power is not made clear in the legislation. One of the extrinsic aids available where legislation is ambiguous or unclear in meaning is the explanatory note or memorandum relating to the Bill introducing the legislation into parliament. Here the explanatory notes to the Bill explain that the definition of a fence excludes a retaining wall for a specific purpose. The comments of the New South Wales Law Reform Commission on the subject of dividing fences are considered pertinent and the following extract from the Commission is set out in the explanatory notes:

Retaining walls serve quite different purposes from fences. They are usually substantial and extensive structures which repose within the subsurface of the land of one adjoining owner .... Retaining walls are usually erected solely for the benefit of the owner who undertakes excavation work.

The explanatory notes continue:

Generally retaining walls involve engineering specifications prior to construction. They are more than the mere levelling of dirt.

Unlike fences, it is not usually possible to make both adjoining owners liable for the cost of maintaining, repairing or replacing a retaining wall. This is because usually a retaining wall is of greater benefit to one of the adjoining owners.

However, the kinds of orders which QCAT can make about carrying out fencing work include work for a retaining wall if the repair of the fence is dependent upon the work for the retaining wall.

It is clear that the tribunal can only make an order about a retaining wall where the retaining wall work is necessary to give effect to an order about fencing work ...^[6]

15. [15]
    I am satisfied that the retaining wall in dispute here is a small but associated and necessary portion of the dividing fence and that the Tribunal may make Orders concerning both the retaining wall and the fence.

The condition of the fence and retaining wall

16. [16]
    Mr Zacaropoulos asserts that the fence is in such a state of disrepair that it no longer constitutes a sufficient fence. What is a sufficient fence is defined in the NDA.^[7]
17. [17]
    Photographs show that the retaining wall does not follow a uniform line along the boundary but has, in sections, bowed and now extends, in part, into 32 Coachella Crescent. The photographs also show the dividing fence leaning at a considerable angle from the vertical for much of its length.
18. [18]
    As a result of the defective retaining wall, and possibly because of inadequate drainage, the dividing fence risks collapse.
19. [19]
    Both the retaining wall and the fence show evidence of rotting.
20. [20]
    I am satisfied that the dividing fence and retaining wall no longer constitute a sufficient fence. It appears impractical to effect repairs to remedy the problem, therefore both the retaining wall and the fence need to be replaced.

Who is responsible for the retaining wall?

21. [21]
    Mr Zacaropoulos says that the retaining wall was built for the benefit of 34 Coachella Crescent. In his submission dated 19 April 2022 he stated that his house was built before Mr Davison’s, and goes on (sic):

I approach the builders of 34 Coachella Crescent Upper Coomera who was yet to commence about the boundary fence between my property 32 Coachella Crescent Upper Coomera QLD 4029 and my neighbouring property 34 Coachella Crescent Upper Coomera QLD 4029. They arranged a timber fence to be built where I paid half the cost. Not long after 34 Coachella Crescent commence building, I addressed with builders that the cut on there block has raised and a retaining wall was needed. They were in agreeance. They then arrange the fence to be cut off at the posts and added a timber retaining wall between the 2 properties and raised the fence at their cost.

22. [22]
    Mr Davison, on the other hand, in his comments accompanying the fencing quote from EZPZ Property Maintenance dated 3 May 2022 asserts that he is responsible for cuts in his land to the north and the east, but cannot be responsible for all three boundaries:

It is clear that I am responsible for the cut into the land on the back side and the low side but I cannot be responsible for all three retaining walls, as the retaining wall between 32 and 34 Coachella Crescent is to the benefit of 32 Coachella Crescent…

23. [23]
    Mr Davison further relies on information provided in an email from MG Homes dated 13 April 2022 sent by its General Manager, Glen Angus. MG Homes built Mr Davison’s house. In this email Mr Angus said:

In relation to your property, we built in 2013 at Lot 827/34 Coachella Crescent Upper Coomera, you can see by this Google historical image taken in October 2012… that your left side neighbour, 32 Coachella, has already completed construction of their home, including the construction of the fence (& retaining) along the common boundary.

24. [24]
    In the same email Mr Angus went on to say (sic):

As this fence & retaining wall was already in place before we commenced building works, it is standard practice with sites with this gentle slope, to work from the existing level that was provided from the top of this retaining wall to determine the pad level for the house slab. Any additional works that are require, we would then cut into the existing slope which is down the right side and rear of your property, removing any excess material from site, and installing a retaining wall within the property boundary and therefore providing the flat building pad to commence construction.

25. [25]
    Mr Angus further said:

You can see from this commencement photo, that the left & right side fences were in place. Our records show that the only fencing we paid for was at the end of construction in July 2013, with your property being completed in August 2013.

26. [26]
    The approach to levelling the block before commencing construction described by Mr Angus is credible and reflects the most appropriate way of preparing building sites with gentle slopes. It is also not credible that Mr Davison must be responsible for retaining walls on three boundaries.
27. [27]
    It is also evident that the fence, and by necessary implication, the retaining wall between the properties had been constructed before the residence at 34 Coachella Crescent was built.
28. [28]
    Therefore, I conclude that the owner of 34 Coachella Crescent, Mr Zacaropoulos, obtains the benefit of the retaining wall and is responsible for its maintenance and repair.

Remedial Work

29. [29]
    As ordered by the Tribunal on 22 April 2022 both parties have obtained quotes for the work needed to remove and dispose of the defective retaining wall and fence and construct a new retaining wall and a new fence.
30. [30]
    Mr Zacaropoulos obtained three quotes:

    1. (a)
       Quote 1841 from Affordable Fencing for replacing the retaining wall and constructing a colorbond fence for $10,384.98.
    2. (b)
       Quote 1843 from Affordable Fencing for a timber fence option for $3,2889.
    3. (c)
       Quote 1842 from Affordable Fencing for the replacement of a gate caused by the retaining wall defects for $1,320.
31. [31]
    Mr Davison obtained one quote from EZPZ Property Maintenance comprising two parts:

    1. (a)
       To replace the retaining wall for $2,400
    2. (b)
       To replace the fence for $2,850 (the same price for both the colorbond and timber fence options)
32. [32]
    All costs related to or arising from the defective retaining wall must be paid by Mr Zacaropoulos. This includes the costs to remove the existing retaining wall, prepare the site and replace the retaining wall, and costs arising from the defective retaining wall such as for the replacement gate mentioned in the Affordable Fencing quote 1843 for $1,320.
33. [33]
    The existing fence is approximately 10 years old. The Australian Taxation Office allows fencing in rental properties to be depreciated over 15 years. But for the defect in the retaining wall, the present fence would be expected to last for 15 years. Because the retaining wall is the responsibility of Mr Zacaropoulos, the diminution in life of the fence caused by the defective retaining wall is his responsibility.
34. [34]
    While the starting point in the NDA is that adjoining owners are each liable to contribute equally to carrying out fencing work for a sufficient dividing fence,^[8] in this case, because of the loss of one-third of the life of the dividing fence is attributable to the retaining wall for which Mr Zacaropoulos is responsible, the cost of replacing the fence is to be shared as follows:

    1. (a)
       Mr Zacaropoulos: two-thirds of the cost.
    2. (b)
       Mr Davison: one-third of the cost.

Costs

35. [35]
    In his submission to the Tribunal dated 19 April 2022 Mr Zacaropoulos asked to be awarded certain costs.
36. [36]
    With few exceptions, this Tribunal is a no-costs jurisdiction.^[9]
37. [37]
    No costs order will be made in this matter.

Decision

38. [38]
    The Tribunal makes the following Orders:

2. 1.
   The existing retaining wall and fence between 32 and 34 Coachella Crescent is to be removed and disposed of. The cost of this is to be paid for 100% by Mr Zacaropoulos.

2. 2.
   A new retaining wall between the properties is to be built to a safe and workmanlike standard. The cost of this is to be paid for 100% by Mr Zacaropoulos.

2. 3.
   A new dividing fence between the properties is to be built. The new fence is to be colorbond. The cost of this fence is to be paid by the parties as follows:

1. (a)
   By Mr Davison: one-third of the cost of a timber fence plus the whole of any additional cost incurred by building a colorbond fence; and
2. (b)
   By Mr Zacaropoulos: two-thirds of the cost of a timber fence.

2. 4.
   The work required to give effect to each of Orders 1, 2, and 3 is to be planned and organised by Mr Zacaropoulos.

2. 5.
   Leave is granted to either party to apply for further Orders or Directions.