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- Unreported Judgment
Jones v Budd QCATA 117
Jones v Budd  QCATA 117
Gregory Kenneth William Jones
5 August 2015
Senior Member Stilgoe OAM
10 August 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – DIVIDING FENCES – where application for dividing fence where request for orders about work on retaining wall – where tribunal found retaining wall performing adequately – where tribunal found fence sufficient – whether tribunal has jurisdiction to hear claim about a retaining wall – whether grounds for leave to appeal
Neighbourhood Disputes Resolution (Dividing Fences and Trees) Act 2011 (Qld) ss 11, 13, 16, 20, 35
Pickering v McArthur  QCA 294
APPEARANCES and REPRESENTATION:
G K W Jones in person
S Budd in person and as representative for T Budd
REASONS FOR DECISION
- Gregory Jones bought his home in 2000 from the builder. There was a retaining wall and fence between his property and his neighbours, Scott and Trish Budd.
- From a time shortly after his purchase until late October 2014, Mr Jones was away from Brisbane. His house was tenanted. When he returned, and took possession of the house again, he noticed: the dividing fence was in a poor state; water was seeping through the retaining wall; the retaining wall was wet and showed early signs of being pushed out; and there was no evidence of any effective drainage system behind the retaining wall.
- Mr Jones contacted the Budds to discuss the situation. In a letter dated 28 October 2014, he suggested the removal of the fence and retaining wall, installation of drains on both sides of the fence, installation of a waterproof filter; installation of a concrete and block wall; and a Colorbond fence on top. He suggested the parties share the cost of that work equally. The Budds did not agree.
- Mr Jones sent the Budds a notice to contribute for fencing work. The fencing work proposed was similar to that in Mr Jones’ letter of 28 October 2014. Again, the Budds did not agree.
- Mr Jones filed an application in the tribunal. The orders he sought were somewhat unusual:
- a)That the Budds provide to the tribunal evidence that the required Council approval was obtained for the dividing wall and the fence;
- b)That the Budds provide to the tribunal evidence that the retaining wall was built within the boundaries of their property;
- c)That the Budds provide to the tribunal evidence that adequate drains have been installed to cause water to drain from their land to the Council’s storm water system and thereby avoid overflow to Mr Jones’ property;
- d)If the matters above are concluded in Mr Jones’ favour, an order to fence;
- e)If the matters above are not concluded in Mr Jones’ favour, orders compelling the Budds to fix the retaining wall; remove the retaining wall if it encroaches; and install sufficient drainage.
- The tribunal dismissed Mr Jones’ application.
- Mr Jones wants to appeal that decision. He says the tribunal did not properly consider the report from his structural engineer. He says that the tribunal erred in not allowing him to call evidence from a witness. He says the tribunal erred in failing to decide who was responsible for the maintenance of the wall. He says that the tribunal should have dealt with the issue of an unauthorised structure.
- Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
Preliminary issue – jurisdiction
- In his application to the tribunal below, Mr Jones acknowledged that the instructions for completing the form noted that applications about fences do not cover retaining walls. He acknowledged that the tribunal’s jurisdiction might be limited but he submitted that there was sufficient nexus between the fence and the wall to give the tribunal jurisdiction.
- The tribunal did not address this issue in its brief reasons for decision. It is, however, an important question.
- Section 11 of the Neighbourhood Disputes Resolution (Dividing Fences and Trees) Act 2011 (Qld) defines a fence. Importantly, a fence is not a retaining wall.
- Section 35(1) states that, in an application for fencing work, the tribunal may decide and order any one of more of a number of matters. Fencing work is defined as the design, construction, modification, replacement, removal or repair or maintenance of the whole or part of the dividing fence.
- Section 35(1)(f) sets out the tribunal’s power to deal with retaining walls:
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.
- That power is clear; the tribunal can only make orders about a retaining wall if there is an order about fencing work and work on the retaining wall is necessary to enable the fencing work to proceed.
- The Budds would be liable to contribute to the cost of fencing work if there is no sufficient fence between their property and Mr Jones’ property. The Act defines a sufficient dividing fence. The only issue with the existing fence was whether it was more than the maximum 1.8 m in height. Otherwise, the tribunal found, and the evidence could support that finding, that the fence was sufficient.
- Mr Jones’ application appears to reverse the order in which the tribunal should consider the issues. Most of his submissions and evidence focussed on the adequacy of the retaining wall. He included a request for an order to replace a timber fence with a Colorbond fence but he told the tribunal, that he didn’t really want an order that the parties share the cost of a Colorbond fence if the retaining wall was sound.
- If the fence was not a sufficient fence, and the tribunal was minded to make an order about it, then it could also have made an order about the retaining wall to the extent necessary to support the new fence. By conceding that the issue was the retaining wall and not the fence, Mr Jones excluded the tribunal’s jurisdiction to make the orders he sought.
- The tribunal was right to dismiss Mr Jones’ application, albeit on different grounds. Leave to appeal should be refused.
The grounds of appeal
- Although it is not necessary for me to consider Mr Jones’ grounds of appeal, I will, briefly, comment on them.
The failure to consider all aspects of the structural engineer’s report
- Mr Jones submitted a report from Jeffrey Hills & Associates. The tribunal relied on this statement in the conclusion of the report:
Despite these deficiencies, the wall appears to be performing adequately for its age.
- Mr Jones submits that the tribunal erred in applying a relative test, rather than an absolute test; that even though the wall is performing well for its age, it may still be structurally unsound.
- The evidence as a whole does not support a finding that the wall is structurally unsound, whether the test is relative or absolute. Jeffrey Hills & Associates’ report notes a deficiency in design. It notes some wood rot. It notes rotation in the vertical but it also notes that Mr Jones’ concrete path is acting as a brace. It recommends an annual inspection of the wall. It does not recommend replacement.
- The tribunal also had a report from Alan Paul, a licensed carpenter. His report confirms the findings of Jeffrey Hills & Associates.
The failure to allow oral evidence from a retired builder
- The tribunal determined that it did not need to call the witness. Although that was the right decision, as it turned out, I am not persuaded that the tribunal gave the matter sufficient thought. The tribunal should have inquired about the witness’ expertise to give the evidence. It should have noted that the witness did not provide a statement for the tribunal. It should have considered whether allowing a witness to give evidence without a prior statement would have been unfair on Mr Budd.
- At the appeal hearing, Mr Jones told me that the witness was going to refer to documents that were not before the tribunal. Although the tribunal may have failed to provide procedural fairness, by not considering whether the witness should have given evidence, a decision to allow that evidence, in all probability, would have been procedurally unfair to the Budds.
Failure to determine responsibility for the wall
- Given its decision not to order any work, the tribunal was not required to make a decision on this issue. If it was required, the tribunal had no evidence from Mr Jones on the point. It was entitled to accept Mr Budd’s oral evidence that the wall was solely because Mr Jones’ property was cut. Mr Jones attempted to cast doubt on that evidence but it is not enough to simply raise the issue and not provide evidence to the contrary.
- The tribunal decides what work is necessary based on the evidence before it. Therefore, Mr Jones had the task of giving the tribunal evidence, if any existed, that the fence was not approved, that it was not erected on the boundary, or that appropriate drainage was not installed. Section 35 does not give the tribunal power to order the investigations Mr Jones sought in his application.
- In his application, Mr Jones stated that he was filing parallel proceedings in the Magistrates Court and that he would advise the tribunal of any outcome in those proceedings. Mr Jones has not mentioned Magistrate Court proceedings since. That is unfortunate, because that Court may have jurisdiction to deal with the retaining wall.
- Leave to appeal is refused.
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Section 11(2).
 Section 16.
 Section 20(1).
 Section 13.
 Transcript page 1-40, line 35 to page 1-41, line 23; page 1-42, lines 41 – 42.
 Transcript page 1-10, lines 25 – 32.
 Transcript page 1-26, lines 27 – 41.
 Transcript page 1-12, line 8.
 Transcript page 1-12, lines 10 – 16.
 Transcript page 1-14, lines 37 – 39; page 1-15, lines 19 – 21.
 Transcript page 1-12, lines 20 – 25.
- Published Case Name:
Gregory Kenneth William Jones v Scott Budd and Trish Budd
- Shortened Case Name:
Jones v Budd
 QCATA 117
Senior Member Stilgoe
10 Aug 2015