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Greenslade v Perry; Cook v Perry QCATA 10
Greenslade & anor v Perry  QCATA 10
On the papers
Senior Member Stilgoe OAM
19 January 2017
APPEAL – LEAVE TO APPEAL – REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where the fence is not on the surveyed boundary – where tribunal ordered fence to be built on boundary – where neighbours claimed adverse possession - whether tribunal should have considered adverse possession claim – whether grounds for leave to appeal
APPEAL – REAL PROPERTY – TORRENS TITLE – INDEFEASIBILITY OF TITLE – EXCEPTIONS TO INDEFEASIBILITY – ADVERSE POSSESSION AND OTHER POSSESSORY TITLE – where fence not built on boundary – where neighbour resisted application to fence on boundary because of claim for adverse possession – where tribunal gave opportunity for claim for adverse possession to be brought in Supreme Court – whether tribunal bound to consider claim for adverse possession
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 13, s 142(3)
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 12
Attorney-General v Kehoe  2 Qd R 350
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Chambers v Jobling (1986) 7 NSWLR 1
Grande v Cregan  QCAT 526
Kellogg v Board of Trustees The Ipswich Girls' Grammar School  QCATA 210
Pickering v McArthur  QCA 294
Tully v McIntyre  2 Qd R 338.
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
- Anthony and Hannah Perry recently bought a home in an inner Western suburb of Brisbane. Mr and Ms Perry sent their neighbours, Noel and Rebecca Greenslade and Fleur Cook, a notice to fence, stating that the existing dividing fence was in disrepair and not on the surveyed boundary. The neighbours did not object to a new fence, but they did object to the fence being constructed on the boundary. They asserted a claim for adverse possession to that part of Mr and Ms Perry’s land enclosed by the existing fence. The tribunal ordered a fence be constructed on the boundary.
- The neighbours want 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 and Ms Greenslade recite four errors of law by the tribunal:
- the tribunal proceeded on the basis that it was obliged to determine the proceeding by reference to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDA’);
- the tribunal did not consider or address the claim for adverse possession;
- the tribunal should have declined to grant relief because of the claim for adverse possession;
- the parties do not share a common fence.
- Ms Cook also submits that the tribunal should not have made a fencing order because of her claim for adverse possession.
- Each of the alleged errors relate to the tribunal’s failure to acknowledge that the tribunal could not deal with the dispute but that it should be dealt with by the Supreme Court under the rules of adverse possession.
Did the tribunal err in proceeding on the basis that it was obliged to determine the proceeding by reference to the NDA?
- The tribunal only has jurisdiction given to it by legislation. The relevant legislation in this case is, and was, the NDA. The tribunal explained that in its reasons for decision so it is not correct to say, as Mr and Mrs Greenslade submit, that the tribunal did not explain why it was obliged to determine the dispute by reference to the NDA.
- It is true that the tribunal did not specifically refer to the claim for adverse possession in its reasons for decision but the rationale for that approach were made clear in previous hearings: the tribunal formed the view that it was deciding a fencing dispute and, if the neighbours wanted to press their claim for adverse possession, they should bring an application in the Supreme Court.
- Mr and Mrs Greenslade submit that the tribunal is required, by s 13 of the QCAT Act, to make orders that it considers fair and equitable. That is true. They submit that, if the tribunal applied s 13, it should have dismissed the application to fence because:
- All the fences in the area are built off the boundary. At the moment, each property has roughly the area contemplated by the title.
- Placing the fence on the surveyed boundary, as requested by the Perrys, would result in the Greenslades losing available useable land. That useable land could only be recouped by shifting the fence on the other side of the Greenslade property.
- It would be difficult to relocate the fence on the other side because the Greenslade neighbours have a pool and landscaping close to that fence.
- If one fence is moved, it creates a ‘knock-on’ effect down the whole street.
- The tribunal cannot make an order, in a minor civil dispute, that effects a whole community.
- Ms Cook’s submission was in similar terms: this was a common issue that affected many homeowners.
- As the tribunal pointed out, it can only make decisions within the law that binds it. That approach is consistent with my earlier decision in the appeal tribunal that s 13 does not expand the powers of the tribunal beyond its statutory powers. Section 13 does not permit the tribunal to make a ‘fair’ decision if it is contrary to law. It does not allow the tribunal to refuse an otherwise lawfully filed fencing application because it might be unfair to parties who are not before the tribunal.
- The tribunal must make its decision based on the parties before it. It cannot make decisions that bind people who are not parties to the proceeding and it should not refrain from making a decision based on the possible effects on people who are neither parties nor witnesses to the proceeding. The means of preventing a knock-on effect was within the neighbours’ power: by making an application to the Supreme Court.
Did the tribunal consider or address the claim for adverse possession when giving its reasons for decision?
- Normally, the failure to give reasons is an error of law. However, the obligation to give reasons must be considered in context. As I have already identified, the tribunal had previously given reasons as to why it was determining this matter as a fencing dispute and not considering claim for adverse possession. The tribunal was not in error.
Should the tribunal have declined to grant relief because of the claim for adverse possession?
- Mr and Mrs Greenslade provided detailed submissions to support a claim for adverse possession. They need not have done so, because the tribunal accepted the claim had merit. I cannot decide whether the neighbours have a right to adverse possession because, as the tribunal pointed out, that is a matter for the Supreme Court. The real question is whether, in the face of the claim for adverse possession, the tribunal should have made an order to fence.
- The appellants referred the tribunal and me to the decision of Grande v Cregan as authority for the proposition that, because of the claim for adverse possession, the application should be dismissed.
- The decision in Cregan does not, in fact, deal with the issue of adverse possession. The tribunal does make some comments about the ‘knock-on’ effect of rectifying one fence when the whole neighbourhood may be affected. But the circumstances in Cregan were different in that Mr Cregan’s house actually encroached over the boundary. It was, therefore, practically impossible to build a fence on the boundary line without solving the issue of the encroachment.
- There was no sufficient dividing fence between the neighbours and the Perrys. The Perrys wanted an order for the construction of a fence. Section 36 of the NDA states out what the tribunal may consider when deciding whether to make an order to fence. The tribunal’s discretion is wide. In addition to a number of specific matters, the tribunal may consider ‘all the circumstances of the application’.
- In my view, ‘all the circumstances of the case’ can include a claim for adverse possession. However, I consider the tribunal’s approach to the claim for adverse possession was correct. The tribunal has no jurisdiction to decide that matter. The tribunal, being aware of the claim, gave the neighbours time to bring an application to the Supreme Court to confirm their rights. They chose not to make that application. The tribunal was, therefore, entitled to decide that the uncrystallised claim for adverse possession should not prevent it from making the usual order to fence. If the tribunal was to do otherwise, it was assuming a de facto jurisdiction it did not possess by recognising a claim for adverse possession that had not been tested in the appropriate jurisdiction.
- The tribunal’s mandate to deal with matters in a way that is economical and quick does not mean that matters of great import, that are within the exclusive jurisdiction of the Supreme Court, should be resolved in a claim filed with a $61 filing fee, in a jurisdiction where the tribunal routinely hears twelve matters per day. To conclude otherwise is to invite an abuse of process.
- Mr and Mrs Greenslade argued that, once he raised the claim, it was for the Perrys to bring an application to the Supreme Court to clarify the position. I do not agree. If the neighbours want the benefit of their claim, they should institute proceedings to confirm it.
- 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 .
 Hearing 18 May 2016 transcript page 1-13, line 45 to page 1-14, line 28; page 1-15, lines 2 – 10. Hearing 20 April 2016 transcript page 1-13, lines 11 – 14; page 1-17, lines 12 – 17.
 Hearing 9 March 2016 transcript pages 1-10, 1-16, 1-20, 1-25, and 1-29.
 Hearing 18 May 2016 transcript page 1-13, lines 41 – 43.
 Kellogg v Board of Trustees The Ipswich Girls' Grammar School  QCATA 210 at .
 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
Attorney-General v Kehoe  2 Qd R 350 at 356; Tully v McIntyre  2 Qd R 338.
 Hearing 20 April 2016 transcript page 1-13, lines 12 – 14; page 1-17, lines 12 – 17; Hearing 18 May 2016 transcript page 1-15, lines 26 – 40.
 Hearing 9 March 2016 transcript page 1-9, lines 24 – 26; page 1-16, lines 44 – 46, page 1-25, lines 16 – 17; page 1-28, lines 4 – 5; page 1-29, lines 2 – 3. Hearing 20 April 2016 transcript page 1-10, lines 23 – 25; page 1-13, lines 13 – 14; page 1-17, lines 12 – 17, lines 40 – 44.
  QCAT 526.
 Hearing 18 May 2016 transcript page 1-14, lines 1 – 15.
 NDA s 12(1).
 NDA s 12(2).
 QCAT Act s 3(b).
- Published Case Name:
Noel Greenslade and Rebecca Greenslade v Anthony Perry and Hannah Perry; Fleur Cook v Anthony Perry and Hannah Perry
- Shortened Case Name:
Greenslade v Perry; Cook v Perry
 QCATA 10
Senior Member Stilgoe
19 Jan 2017