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- Unreported Judgment
Herberg v Lighezan QCATA 67
Herberg & Anor v Lighezan & anor  QCATA 67
Kenneth Ronald Herberg
Diane Elizabeth Herberg
On the papers
Senior Member Stilgoe OAM
6 June 2017
APPEAL – LEAVE TO APPEAL – REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – QUALITY OF FENCE – where application for fencing order – where existing fence cyclone mesh – where neighbour wanted Colorbond fence – where tribunal ordered erection of Colorbond fence and equal contribution – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where Tribunal failed to provide adequate reasons for decision
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 4(d), s 142(3)(a)(i)
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 13(1)(a), s 13(1)(c)(ii), s 13(3)(b), s 21(2), s 36
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
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
- Kenneth and Diane Herberg have lived in their home at Wishart for many years. Chistian Lighezan and Zheng Zhao recently moved next door. The two house are separated by a wire mesh cyclone fence. Mr Lighezan and Ms Zhao wanted to replace the fence with a Colorbond fence.
- Initially, the parties thought they had an agreement about the fence. On 11 June 2016, Mr Lighezan and Mr Herberg together removed the mesh panels. On 13 June 2016, Mr Lighezan and Ms Zhao sent the Herbergs a notice to fence. By letter dated 15 June 2016, the Herbergs told Mr Lighezan and Ms Zhao that they did not agree to the fence. They thought the fence was sufficient. They did not want to contribute to the cost of a Colorbond fence. They did not like the colour of the proposed fence.
- Mr Lighezan and Ms Zhao applied to the tribunal for an order to fence. The tribunal ordered a Colorbond fence be erected and that the parties share the cost of the fence equally.
- The Herbergs 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.
- The Herbergs say that the tribunal’s decision was inconsistent with an earlier decision of the tribunal about a similar fence between Mr Lighezan, Ms Zhao and another neighbour. They say the the tribunal erred in finding that Wishart required a better standard of fencing. They say the existing fence is a sufficient fence.
Should the tribunal have considered the earlier decision?
- Mrs Herberg told the tribunal that Mr Lighezan and Ms Zhao had been to the tribunal about the back fence but she took the evidence no further. The tribunal is required to ensure like cases are treated alike but the tribunal requires something more than an off hand comment to bring the issue to its attention.
- Careful scrutiny of the photographs the Hermans supplied to the tribunal does show that the back fence, between Mr Lighezan and Ms Zhao and their neighbours, is also a cyclone fence. Perhaps, in those circumstances, Mrs Herberg’s statement required further exploration.
- However, the tribunal was not in error in failing to consider the earlier decision.
Did the tribunal err in finding that Wishart required a better standard of fencing?
- The tribunal’s reasons for decision do not find that Wishart required a better standard of fencing. Indeed, the tribunal made no finding of fact about the fence and did not explain why it thought the existing fence was deficient. The tribunal did comment that there is a changing standard of fence in the area and Mr Lighezan made the comment that the older properties would have an older type of fence but those comments, or findings, did not make their way into the tribunal decision.
- The tribunal was not in error as the Herbergs contend. The tribunal was in error for failing to give sufficient reasons for its decision.
Did the tribunal err in finding that the fence was not sufficient?
- Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.
- ‘Prescribed material’ includes chain wire. Therefore, a fence cannot be insufficient just because it is made of chain wire.
- The fence was of an acceptable height. It was constructed of a prescribed material.
- The matters the tribunal can consider when deciding about an application to fence are set out in s 36 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (NDR Act). The tribunal can look at any existing, or previously existing, fence. It can look at the purposes for which the two parcels of land are used. It can look at the kind of dividing fence used in the area. It can look at whether the fence is capable of being maintained. It can look at any written agreement between the owners. It can consider all the circumstances of the application.
- Because the tribunal failed to give reasons for its decision, I am unable to determine whether it correctly considered the matters in s 36. I have my doubts, though, as the evidence shows there are a range of fence types in Wishart and Mr Lighezan and Ms Zhao created the need for a privacy fence by removing large trees that had been planted along the fence line. It seems to me that Mr Lighezan and Ms Zhao wanted a fence that was greater than the standard of a sufficient dividing fence. If I am correct about that, then Mr Lighezan and Ms Zhao should pay for the cost of that fence. However, as whether the standard of fence is greater than a sufficient fence is a question of fact, the matter should be returned to the tribunal for reconsideration and the provision of proper reasons.
- I note that the parties did not want to engage in mediation. Because they will be neighbours for some time to come, and it is important that they have a means of respectful and apropriate communication, I do order that the parties attend mediation at the tribunal before the matter is listed for rehearing.
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Transcript page 1-10, line 47.
 QCAT Act s 4(d).
 Transcript page 1-11, line 36.
 Transcript page 1-12, lines 8 – 9.
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 13(1)(a).
 Ibid s 13(1)(c)(ii).
 Ibid s 13(3)(b).
 Ibid s 21(2).
- Published Case Name:
Kenneth Ronald Herberg and Diane Elizabeth Herberg v Christina Lighezan and Zheng Zhao
- Shortened Case Name:
Herberg v Lighezan
 QCATA 67
Senior Member Stilgoe
06 Jun 2017