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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Mardon v Holmkvist  QCATA 108
Shane colin mardon
MCDO 30/19 (Townsville)
14 July 2020
On the papers
REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where adjoining owner erected a substantial fence close to the neighbour’s boundary – whether under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) the neighbour can insist on a fence being erected on the boundary and the cost to be shared
REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where tribunal decided a fence on the boundary was not required because of a substantial fence on adjoining land – where the substantial fence was incomplete at the time of the hearing – whether the tribunal could order that it be completed
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – where tribunal exercised its discretion in a fencing dispute in the erroneous belief it could make a particular order – where an undertaking to achieve the same purpose would have been offered if required – whether on appeal the tribunal’s exercise of its discretion about the dividing fence can remain undisturbed
Acts Interpretation Act 1954 (Qld), s 14, s 14B, s 32CA
Dividing Fences Act 1991 (NSW), s 14
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 7, s 13, s 35
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13, s 114, s 131, s 132, s 133, s 218, s 219
Alliance Security Australia Pty Ltd v House Secure Pty Ltd  QCATA 89
New Brunswick, etc., Co v Muggeridge (1859) 4 Drew 686
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Right v Burrett  QCATA 71
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- This appeal touches on what happens when an owner of land builds a substantial fence on their own land and to their own specifications and close to a neighbour’s boundary.
- In a case where it is not suggested that the substantial fence should be removed, can the neighbour insist that a fence is erected on the boundary and that the cost of this is shared? A tribunal panel comprised of two Justices of the Peace answered ‘no’.
- Where the substantial fence was incomplete and open at the time of the hearing, can the tribunal order it to be completed? The panel answered ‘yes’.
- The two neighbours, Shane Mardon and Monica Holmkvist, owned properties which shared a common boundary. Ms Holmkvist had erected units on her lot. As part of the development work, she had built up the land on her lot and held back that land with a masonry block retaining wall on her side of the boundary. Then atop the retaining wall she had built block piers ready for infill panels to be fitted between the piers to complete a substantial block pier fence. This fence was some 300mm to 400mm into her land. Originally there had been a wire fence between the two properties which had been taken down. It was not clear to the tribunal whether or not this wire fence had been on the boundary and who had removed it.
- The result however, was that there was no fence at all along the boundary between the two properties. Such a fence would be called a ‘dividing fence’ under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (2011 Act), which governs these matters.
- Seemingly having served two contribution notices on Ms Holmkvist, Mr Mardon brought an application in the tribunal asking for an order for a dividing fence to be erected. The application was heard by the panel on 4 April 2019. The Appeal Tribunal has obtained a transcript of the hearing, and from this it can be seen what happened.
- The panel was told at the hearing that Ms Holmkvist had not yet fitted two of the infill panels in the block pier fence. She said that this was intentional and was required to leave room for a crane for further works at her property. This meant that the fence was open at the time of the hearing. Mr Mardon complained at the hearing that the open fence caused problems for the confinement of his dogs and he had other problems because of the absence of a dividing fence.
- The panel decided not to order the erection of a dividing fence. Instead, the panel decided to order the missing infill panels to be fitted by a certain date, so that the block pier fence on Ms Holmkvist’s land would be completed. On that basis, the panel decided that there was no need for a dividing fence and that Mr Mardon’s application should be dismissed.
- On appeal, Mr Mardon submits that there is a right to a dividing fence and so the panel was obliged to order that one should be erected. It is said that if there is a discretion whether or not to order the erection of a dividing fence, in this case such an order should have been made because Ms Holmkvist removed the wire fence which was previously there.
- Two other points are made by Mr Mardon in this appeal:
- (a)The retaining wall and block pier fence will be 2.2m high and therefore will need building approval.
- (b)The area between the retaining wall and block pier fence and the boundary is open and will be almost impossible for Ms Holmkvist to maintain. It will become overgrown and harbour pests and vermin, and will be an eyesore and a health hazard for Mr Mardon.
- The first point is new. It was not made to the panel which originally decided this matter. There is a difficulty raising a new point on appeal because an appeal is not normally an opportunity for a rehearing to make a new point. The other difficulty is that the new point would need to be established by ‘fresh’ evidence. The Appeal Tribunal made directions about fresh evidence on 12 December 2019. These directions required that if the Appeal Tribunal is to be asked to look at fresh evidence there should be formal application explaining why that evidence was not available at the original hearing and why it is relevant. This was not done. Because of these two difficulties I am unable to consider this new point in this appeal.
- The second point is partly new. At the hearing, the main issue raised by Mr Mardon was that the open block pier fence was causing problems for him confining his dogs – hence there should be a dividing fence. But he also said:
It looks aesthetically unattractive. We’ve got problems with weeds and water as well.
- One issue which needs to be resolved in this appeal is whether the tribunal is obliged to order that a dividing fence be erected where there is no fence on the boundary at all; or whether the tribunal has a discretion whether or not to do so. In other words, does an owner have a right to a fence along the boundary with another property?
- It is significant for this appeal that it has never been suggested by Mr Mardon that the block pier fence should be removed. The tribunal has jurisdiction to order the removal of a fence wholly on a neighbour’s land under section 33(3) of the 2011 Act if it considers that its removal is necessary to allow fencing work for a dividing fence. It seems likely that Mr Mardon is aware of this power, because he has cited many parts of the Act in his appeal. Also he is assisted by a firm of architects who have produced a report for the appeal, who have also cited a number of the provisions of the Act. But Mr Mardon seems to accept that the block pier fence should remain, saying in his application that it was needed because Ms Holmkvist built units on her lot. Mr Mardon certainly did not seek an order for removal of the block pier fence at the hearing. And such an order has not been sought in this appeal.
- There is another issue in this appeal. The order made by the panel was as follows:
- Claim is dismissed.
- That the respondents complete the panels in the existing besser block fence adjacent to the applicants property by the end of 2019.
- Order 2 was directed at Ms Holmkvist. The question arises whether the tribunal had jurisdiction to make order 2 bearing in mind there is no power to do so in the 2011 Act. The tribunal is bound to examine jurisdictional issues on its own initiative if necessary, whether hearing matters at first instance, or on appeal.
- If there was no power to make order 2, then it would be right in this appeal to set it aside. And if it is set aside, it would be necessary to consider whether this undermines order 1. This is because the panel decided that on making order 2 it was right to make order 1. If it did not have power to make order 2, it may have exercised its discretion about the dividing fence differently.
Is there a right to a dividing fence?
- The answer to this is not straightforward because of two conflicting provisions in the 2011 Act. Section 7(1) says (in a section headed ‘Overview’):
- (1)A sufficient dividing fence is required between 2 parcels of land if an adjoining owner requests a dividing fence.
- Subsection (4) of section 7 provides that if neighbours cannot resolve a dividing fence issue the dispute may be taken to the tribunal for resolution.
- The wording of section 7(1) suggests that in every case an owner can insist on the erection of a fence on the boundary. But the provision needs to be contrasted with that in section 35(1) which lists the decisions and orders which ‘may’ be made, not ‘must’ be made by the tribunal when hearing an application in relation to fencing work. Paragraph (g) of section 35(1) permits the tribunal to decide:
that, in the circumstances, no dividing fence is required for all or part of the boundary of the adjoining lands;
- Section 12 defines a ‘dividing fence’ as a fence on the common boundary of adjoining lands, with such diversions as are contemplated by that section. Section 13 defines a ‘sufficient dividing fence’ as a dividing fence of a certain height and made of certain material, or where the adjoining owners agree or the tribunal has so ordered.
- Importantly, section 13(2) provides that when deciding whether there is a sufficient dividing fence, the existence of a fence on adjoining land must not be taken into account.
- It seems odd that section 7(1) provides that a sufficient dividing fence is required if an adjoining owner requests it, but section 35(1)(g) says that the tribunal is able to say that it is not required in the circumstances of a particular case. Should section 7(1) prevail over section 35(1)(g)?
- The explanatory notes when the 2011 Act was introduced as a Bill in parliament may be considered, but provide no insight into what was intended.
- Clause 7 which became section 7, is explained:
It is a principle of the legislation that there should be a sufficient dividing fence between 2 parcels of land, if an adjoining owner requests one. A sufficient dividing fence is required even if 1 or both parcels of land are vacant land.
- And for clause 13, which became section 13:
In some cases, an adjoining owner will build a fence within their own boundary, in order to have the kind of fence they choose. This can create many difficulties, including that of maintaining the dividing fence.
There have been inconsistent decisions in the past about the appropriate treatment of such a fence, so the Bill clarifies the matter. Under the Bill, in deciding whether there is a sufficient dividing fence, the existence of a fence, other than a dividing fence, on adjoining land, is not to be taken into account. If there is such a fence on adjoining land, and it is necessary for it to be removed for fencing work to occur, QCAT can order its removal and may also make orders about its restoration.
- And when considering clause 35 which became section 35:
This clause outlines the kinds of orders QCAT may make in an application in relation to fencing work.
The clause continues to clarify that occupation of land on either side of a dividing fence as a result of a QCAT order that fencing work be carried out on a line other than the common boundary, does not affect title to or possession of the land.
The clause allows QCAT to make any order for any other work to be carried out that is necessary to carry out fencing work including work for a retaining wall. This would be necessary when the structure of the dividing fence is or would be compromised by the failure of a retaining wall and cannot be repaired or constructed unless the retaining wall is repaired It would also cover works such as drainage which are necessary for repairing a dividing fence.
- It is notable that there is no explanation why section 35(1)(g) seems to permit the tribunal to override the principle in section 7(1) and the imperative in section 13(2).
- The explanatory notes demonstrate that there was some inspiration for the wording of the Queensland legislation from the equivalent legislation in New South Wales. It is notable that section 14(1) in the Dividing Fences Act 1991 (NSW) which lists the orders which can be made are largely repeated in the Queensland legislation with some changes. In particular, the NSW version has paragraph (g), closely similar to the words in section 35(1)(g):
- (g)that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands.
- The former Queensland law was in the Dividing Fences Act 1953 (Qld). In that Act there was certainly no requirement for a sufficient dividing fence if requested by an owner. Instead, the liability of adjoining owners was expressed in this way:
7 Liability of owners of adjoining lands to fence
Subject to this Act the owners of adjoining lands not divided by a sufficient fence shall be liable to join in or contribute to the construction of a dividing fence between such lands in equal proportions, whether the adjoining lands are to be wholly or only partly separated thereby
- After the service of a notice to fence, a party could apply to the Magistrates Court or to the tribunal for an order. There was a discretion whether or not to make an order. This is clear from section 9 because the wording is that the Court or tribunal ‘may’ make an order to fence.
- The scheme of the Queensland Dividing Fences Act 1953 was to set out the liability of neighbouring owners to contribute to a dividing fence where there was no sufficient fence (section 7) but then to permit the tribunal to decide not to make an order for a dividing fence (section 9).
- It would appear that the same approach was taken in the 2011 Act. Viewed that way, section 7(1) provides that a sufficient dividing fence ‘is required’ if an adjoining owner requests one, and by section 7(2) generally neighbours must contribute equally, but section 35 lists the orders which ‘may’ be made, demonstrating that there is no right to an order, and this is firmly emphasised by paragraph (g).
- To say that the requirement in section 7(1) prevails over the other provisions, would require:
- (a)the ‘may’ in section 35 to be read as ‘must’; and
- (b)paragraph (g) in section 35(1) to be ignored.
- I think this would be a step far too far, despite the imperative in section 13(2).
- Here I have regard to section 32CA of the Acts Interpretation Act 1954 (Qld) which is very clear:
32CA Meaning of may and must etc.
- (1)In an Act, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.
- (2)In an Act, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.
- (3)To remove any doubt, it is declared that this section applies to an Act passed after 1 January 1992 despite any presumption or rule of interpretation.
- As for paragraph (g), it is right to find a construction to give effect to this paragraph, so that no ‘clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’. Section 35(1)(g) can only mean that the tribunal may decide that despite the absence of a sufficient dividing fence, one is not required. It would be wrong to ignore this provision.
- My conclusion therefore is that contrary to Mr Mardon’s submission in this appeal, where there is no dividing fence or no sufficient dividing fence, an owner cannot insist that one is erected. The tribunal has a discretion whether or not to order one to be erected.
Did the tribunal have jurisdiction to order the completion of a fence on adjoining land (order 2)?
- The question is whether the tribunal had jurisdiction to make order 2. Section 13 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) lists the types of order which can be made when hearing a minor civil dispute. Section 13(1) permits the tribunal to dismiss an application if the tribunal considers it appropriate. Section 13(2) limits the ‘final decisions to resolve the dispute’ which can be made. For fencing disputes this is:
- (c)for a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011—a decision or order the tribunal may make in relation to the matter under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011;
- A ‘final decision’ is ‘the tribunal’s decision that finally decides the matters the subject of the proceeding’.
- Order 2 was not an order that the tribunal could make under the 2011 Act. So if order 2 was a final decision the tribunal had no jurisdiction to make it.
- It is clear that the order made on 4 April 2019, considered as a whole, was the final order in Mr Mardon’s application because it ended the proceedings and resolved all matters in dispute between the parties in those proceedings. This cannot mean however, that every part of that order was a ‘final decision’ for the purpose of the jurisdictional test which must be applied under section 13.
- This is because the QCAT Act contemplates that non-final decisions can be made in final orders. There is power to do so under section 114 of the QCAT Act:
114 Conditions and ancillary orders and directions
The tribunal’s power to make a decision in a proceeding (the primary power) includes a power—
- (a)to impose conditions on the decision; and
Example of a condition—
that something required to be done by the decision be done within a stated period
- (b)to make an ancillary order or direction the tribunal considers appropriate for achieving the purpose for which the tribunal may exercise the primary power.
Examples of ancillary orders or directions—
• an order adjourning the proceeding
• an order or direction that a person give an undertaking to the tribunal
- For example, in the context of a fencing dispute, an order might be that provided that the quote was still current, owner 1 should engage the fencing contractor to erect the fence and upon completion of the fence owner 2 should pay owner 1 half the amount shown on the quote. In that order there are two conditions on the decision made under section 114(a) (in italics).
- An order might be that owner 1 must obtain three quotes from QBCC licensed fencing contractors for a 40 metre 1.8m high butted paling fence with hardwood posts and rails and engage the contractor giving the cheapest quote to erect the fence. Here there are two ancillary orders made under section 114(b) (in italics). That sort of order might be needed where the applicant’s quotes were for a different type of fence than that decided upon by the tribunal.
- In the above examples the conditional orders and the ancillary orders were part of the final order, but were not themselves final decisions. The QCAT Act contemplates other non-final decisions in final orders, for example an award of interest in a claim to recover a debt or liquidated demand of money (section 14) or a limited costs order (section 102). And in practice in minor civil disputes there are often non-final decisions made in the final order, for example correcting the name of a party on the record (under section 62 or 64), allowing representation (section 43), and joining or removing a party (section 42).
- It is clear from the above analysis that not every part of a final order will always be a ‘final decision’ as defined. It is therefore possible that order 2 was not a final decision. It depends on whether it decided a matter the subject of the proceeding.
- In a minor civil dispute it will sometimes be a challenge to identify the matters the subject of the proceeding. This is because the parties are generally not legally represented, and there are no formal pleadings or identification of the issues between the parties. It will often be the case that the relevant factual issues and the legal principles involved are misunderstood. This means that the tribunal itself will often need to identify the matters the subject of the proceeding in order for the application to be properly resolved, and this may well differ from the matters identified by the parties.
- Where a matter or issue is raised by a party in its application or in its response if there is one, then it will usually be the case that if that matter or issue is resolved by the tribunal, this will be done in a final decision because the matter or issue will have been a matter the subject of the proceeding.
- In Right v Burrett  QCATA 71 the respondent had sold a horse to the applicant but had not delivered the relevant horse association’s signed transfer form. The applicant applied to the tribunal for an order that the respondent deliver the signed transfer form or if no such order were made, for the return of the purchase price. The Adjudicator ordered the respondent to deliver the signed transfer form to the applicant and dismissed the application for the return of the purchase price. On appeal, I decided that there had been no jurisdiction to order the respondent to deliver the signed transfer form because it was the main remedy sought by the applicant and therefore was a matter the subject of the proceeding and resolving it was a final decision. Since it was not a final decision of a type listed in section 13, the tribunal could not make it.
- Applying that test alone in this appeal, the order to complete the fence would not be a final decision because neither side had asked for it. Certainly it was not part of Mr Mardon’s application and he did not ask for that order at the hearing. And it had not been raised by Ms Holmkvist. Instead, the members of the panel raised the issue.
- However, this does seem to be a too simplistic approach. It would seem odd that a matter or issue raised by a party would be more likely to be a matter the subject of the proceeding than a matter or issue raised by the tribunal in order to resolve the application properly. Where the tribunal raises a matter, then it seems certainly possible for that matter to become a subject of the proceeding if it develops sufficiently to form part of a final decision or order.
- Some insight into how far the tribunal needs to go before a matter it has raised becomes a matter the subject of the proceeding comes from the attributes of a final decision under the QCAT Act. A final decision must be given in writing (section 21), reasons for the final decision must be given orally or in writing [section 121(4)], and a final decision may be published in any way the tribunal considers appropriate (section 125).
- Perhaps more importantly, a final decision may be enforced in the courts. For enforcement, section 131 applies to a monetary decision and section 132 applies to a non-monetary decision. And under section 133 a final decision may be ‘renewed’ if there are problems with its enforcement or implementation. Since these sections only apply to a final decision, it seems clear that any order made by the tribunal which the tribunal intends to be enforceable or capable of renewal under these sections must be a final decision. The tribunal will intend that most orders requiring a person to do something are enforceable or capable of renewal, unless they are procedural as in the fencing dispute examples above. This is because, like the courts, the tribunal will not make an order in vain.
- In this appeal it certainly would appear from the face of the final order made by the tribunal that order 2 was intended to be enforceable or capable of renewal. This appears from the transcript too. On that basis order 2 was made in a matter the subject of the proceeding and it was a final decision.
- In the circumstances I must conclude that since order 2 is not in the list of orders which the tribunal can make under section 13 of the QCAT Act and section 35 of the 2011 Act where there is no order for a dividing fence, the tribunal did not have jurisdiction to make it and it must be set aside.
Should the tribunal’s exercise of its discretion be disturbed?
- On the basis that order 2 must be set aside, I need to consider whether the panel’s exercise of its discretion about the dividing fence should be disturbed. The panel decided not to make an order for a dividing fence in the mistaken belief that it could make a direct order that the block pier fence on the adjoining land was to be completed. The panel may have decided differently if it knew it could not make that direct order.
- On the other hand, the panel did have another route available to achieve the same result. Section 114(b), which permits the tribunal to make ancillary orders or directions, contains these examples:
Examples of ancillary orders or directions—
• an order adjourning the proceeding
• an order or direction that a person give an undertaking to the tribunal
- The example in the second bullet point means that the tribunal could have required Ms Holmkvist, by order or direction, to undertake to the tribunal to complete the block pier fence instead of being directly ordered to do so.
- Such an order or direction would not have been a ‘final decision’ because it would have been an ancillary order under section 114(b). And by its very nature, an order or direction that a person give an undertaking can never itself be directly enforced because giving an undertaking can never be made compulsory. So making any such order or direction would not have the intent that it would be enforceable as a final decision under section 132 of the QCAT Act (non-monetary decisions). Such an order or direction would therefore have been a non-final decision and within section 114(b), and therefore within the jurisdiction of the tribunal.
- In practice, if the panel had been minded to make such an order or direction it would have explained to Ms Holmkvist that a breach of such an undertaking would be enforceable as a contempt of the tribunal under sections 218 and 219 of the QCAT Act. Had Ms Holmkvist refused to give the undertaking, then the members of the panel would have had no choice but to proceed on the basis that they could not enforce the completion of the block pier fence.
- It is clear to me on reading the transcript however, that had the panel required Ms Holmkvist to give an undertaking to complete the block pier fence, it is highly likely that she would have given it. This appears from the clear and unequivocal promise that she, and the support person who attended the hearing with her, gave to the panel that the direct order would be complied with.
- On that basis, the panel would have exercised the discretion about the dividing fence in exactly the same way as they did in reliance upon the direct order. The panel was aware of the problems reported by Mr Mardon because of the absence of a dividing fence. Despite this, the panel decided that there was no need for one, provided the block pier fence was completed. This decision was open to the panel and I cannot see that there was any error except in making the direct order instead of requiring an undertaking. So there is no reason to disturb order 1.
Conclusion in the appeal
- The panel did not have jurisdiction to make the order requiring Ms Holmkvist to complete the block pier fence. Leave to appeal is granted and that order is set aside.
- The panel could have achieved the same result by accepting an undertaking from Ms Holmkvist to complete the block pier fence, and it is highly likely that this would have been given if she had been required to give it. Since there is no right to a fence on the boundary and no reason to impugn the panel’s decision not to order one, that decision stands.
 Although the dates of the contribution notices are given in the application, they were not exhibited to the application as they should have been. However, the validity of the notices and the fact of the tribunal’s jurisdiction arising from them was not questioned in the hearing and is not questioned in this appeal. This means that it is right to infer that they were in order, and that the application was brought before the tribunal at the right time.
 Transcript 1-4 line 31.
 This power has been recognised by the Queensland Law Reform Commission as sufficient to deal with the problem of a ‘second fence’ being built away from the boundary by one of the neighbours: paragraph 2.205 of Report No 72 December 2015.
Alliance Security Australia Pty Ltd v House Secure Pty Ltd  QCATA 89 (Dr J R Forbes).
 Where it is impracticable to construct a fence entirely on the common boundary because of natural physical features, or where pastoral land is separated by a watercourse, lake, or other natural or artificial feature insufficient to stop the passage of stock at all times.
 Or in the case of pastoral land, where the dividing fence is sufficient to restrain livestock of the type grazing on each of the parcels of land.
 Explanatory notes can be considered where a statutory provision is ambiguous or obscure: section 14B of the Acts Interpretation Act 1954 (Qld).
 Page 11.
 Page 15.
 Page 22.
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, .
 And a fencing dispute is a minor civil dispute: Schedule 3 of the QCAT Act.
 Defined in Schedule 3 of the QCAT Act.
 Such an order is not in the list of orders which can be made in section 35, where there is no order for the erection of a dividing fence.
 A response is required only in minor debt claims: Rule 45 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).
New Brunswick, etc., Co v Muggeridge (1859) 4 Drew 686, 699.
 Transcript 1-18 lines 25 and 45, 1-22 line 38.
 An example can extend the meaning of the provision: section 14 of the Acts Interpretation Act 1954 (Qld).
 Transcript 1-22 line 43.
- Published Case Name:
Shane Colin Mardon v Monica Holmkvist
- Shortened Case Name:
Mardon v Holmkvist
 QCATA 108
14 Jul 2020