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- Unreported Judgment
Gynther v Mills QCATA 11
Gynther v Mills & Anor  QCATA 11
Robert James Mills
Elaine Joan Mills
On the papers
Senior Member Stilgoe OAM
18 January 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – DIVIDING FENCE – where notice to fence nominated a timber fence – where applicants told the tribunal they preferred a chain link fence – where tribunal had quotes for both timber and chain link fence – where respondent wanted a better standard of timber fence – where tribunal ordered a chain link fence – whether grounds for leave to appeal
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 21(2), 37(b)
Pickering v McArthur  QCA 294
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- The dividing fence between Trevor Gynther’s property and that of his neighbours Robert and Elaine Mills was dilapidated and needed replacement. Mr and Ms Mills had tried to get Mr Gynther’s agreement to replace the fence for some years, without success, so they filed an application in the tribunal. Although Mr and Ms Mills initially wanted a 1.8 metre timber fence, they told the tribunal they would prefer a 1.5 metre chain link fence, as it was easier to maintain, given Mr Gynther’s heavily treed property. Mr Gynther preferred a “best practice” fence with galvanised steel posts, CCA treated hardwood and galvanised steel fixings. The tribunal ordered the parties contribute equally to a 1.5 metre chain link fence.
- Mr Gynther wants to appeal that decision. 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.
- Mr Gynther says the tribunal made its decision without having two quotes about the cost of the chain link fence. He says that Mr and Ms Mills told him they wanted a timber fence, not a chain link fence. He says the chain link fence does not offer him any privacy and degrades his property value. He says the tribunal did not consider the advice of an experienced registered builder. He wants the tribunal to hear the matter again when he is well enough to attend the tribunal again.
- The tribunal does not need two quotes for fencing. It is sufficient that it has some evidence of the cost of the proposed work. Mr Gynther did not argue that the quote was excessive or, for some other reason, unreliable. If Mr Gynther did have that view, then he could have provided an alternative quote. He did not do so. The tribunal was entitled to rely on the only quote provided.
- It is true that Mr and Ms Mills’ notice to fence nominated a timber fence. At the hearing, they acknowledged that the usual fence for the area was a timber fence. Ms Mills then told the tribunal that she wanted a fence that was easy to fix if a dead branch fell on it. She told the tribunal she didn’t mind whether it was a timber fence or a chain link fence. Mr Mills told the tribunal that he was happy with a wire fence.
- The tribunal had a quote for a chain link fence. Mr Gynther had a quote for a chain link fence. The tribunal was entitled to consider whether a chain link fence was a suitable fence and I am not persuaded that Mr Gynther was under any procedural disadvantage by Mr and Ms Mills’ request for a chain link fence at the hearing.
- The tribunal can take account of a neighbour’s privacy in determining what a sufficient fence might be. Mr Gynther did not argue this issue before the tribunal until after the decision was handed down so there is limited evidence before the tribunal about it and the tribunal’s reasons do not address privacy. Mr Gynther’s complaint was not that Mr and Ms Mills could see into his yard, but that he could see into Mr and Ms Mills’ yard. If Mr and Ms Mills have no privacy concerns, I do not see why the tribunal should be troubled by privacy issues.
- Mr and Ms Mills provided pictures of the boundary which show Mr Gynther’s property is heavily treed. The evidence before the tribunal would not support a finding that the parties’ privacy was compromised by a chain link fence rather than a timber fence. Similarly, Mr Gynther did not argue, and there was no evidence before the tribunal to support a submission, that a chain link fence would devalue his land.
- The tribunal did consider the evidence Mr Gynther provided from Osco Pty Ltd. Mr Gynther told the tribunal that Osco recommended galvanised steel posts:
Now, we’ve taken into consideration Mr Gynther’s arguments for a particular and more expensive fence …
It is also a factor that a more expensive fence may be over-engineering for the requirements of a fence for the current parties and that that longevity of fence may not be required.
So this is relevant because Mr Gynther has asked for a much more expensive fence …
- The tribunal identified that Mr Gynther was suggesting fencing work that was to a greater standard than the standard for a sufficient dividing fence. It identified that, where one owner wants a fence to a greater standard, that owner is liable for the difference in cost. Mr and Ms Mills did not want the “fancy over the top” fence. Mr Gynther was not prepared to pay the extra costs involved in his suggested fence. As Mr Gynther was not prepared to pay the extra costs of the “improved fence” the tribunal rightly declined to order that the fence be built in accordance with the recommendation.
- I do not, however, agree with the tribunal’s observation that it was required to accept the cheaper of the two quotes provided to it. The tribunal’s task is to decide what a sufficient fence is. Only then, if there are two different quotes for the same fence proposal, can the tribunal opt for the cheaper quote.
- I understand and accept that Mr Gynther suffers from ill health. Mr and Ms Mills dispute the severity of Mr Gynther’s disability but I do not need to discuss their concerns in this decision.
- The parties agreed that the fence needed to be replaced. Mr Gynther favoured a fence with galvanised steel posts, so that the fence would last. Mr and Ms Mills favoured a fence that could be easily fixed and which did not allow the accumulation of debris. The chain link fence satisfies both of those requirements.
- The file shows that the fence had been a source of disagreement since 2007. The parties needed a resolution. The transcript indicates that Mr Gynther understood the issues and was able to argue his position. I am not persuaded that Mr Gynther’s health disadvantaged him in the hearing.
- There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.
 QCAT Act, s 142(3)(a)(i).
Pickering v McArthur  QCA 294 at .
 Transcript page 1-6, lines 20 – 25.
 Transcript page 1-6, lines 39 – 44.
 Transcript page 1-7, line 45.
 Transcript page 1-8, lines 1 – 2.
 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 36(b).
 Transcript page 1-26, lines 29 – 31.
 Transcript page 1-10, lines 1 – 5.
 Transcript page 1-24, lines 26 – 27.
 Transcript page 1-24, lines 29 – 31.
 Transcript page 1-25, line 1.
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 21(2).
 Transcript page 1-16, line 14.
 Transcript page 1-23, lines 1 – 23.
 Transcript page 1-24, lines 33 – 37.
 Transcript page 1-21, line 45 to page 1-22, line 2.
- Published Case Name:
Trevor Gynther v Robert James Mills and Elaine Joan Mills
- Shortened Case Name:
Gynther v Mills
 QCATA 11
Senior Member Stilgoe
18 Jan 2016