Twidale v Marshall[2022] QCATA 164

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction 

1. [1]
   The applicants (`Twidale’) and the respondent (`Marshall’) have been neighbours at Ashgrove for some five years. Between their properties is a welded mesh fence (`the old fence’) which they have generally, albeit not with perfect accuracy^[1] regarded as a dividing fence.
2. [2]
   Marshall, after rebuilding her house, proposed to remove the old fence and erect a more attractive timber fence (`the new fence’) on the Twidale-Marshall boundary line. Marshall was prepared to pay the entire cost of this exercise.^[2]
3. [3]
   But after lengthy, sometimes acrimonious and ultimately unsuccessful negotiations Twidale rejected the offer. Twidale was concerned, so he said, about minor incursions on his property, the height of the proposed new fence and temporary disturbances of soil while the new fence was being constructed.

Marshall builds her own fence

4. [4]
   Exasperated, Marshall built the new fence on her side of the boundary line. It followed that new fence is not subject to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (`the Neighbourhood Act’).
5. [5]
   To clarify the legal position Marshall began these proceedings on 20 September 2021, seeking a declaration that the new fence is indeed within her property. She also sought orders that Twidale remove objects he had attached to the new fence, and prohibiting removal or alteration of the old fence.

Marshall seeks confirmation

6. [6]
   On 22 September 2021 the tribunal ordered that, pending the determination of the proceedings, Twidale must not remove, alter or demolish the old fence.
7. [7]
   On 11 October 2021 Twidale filed a response claiming inter alia that the new fence is not on Marshall’s property but on the Marshall-Twidale boundary line, and is therefore a dividing fence within the meaning of the Neighbourhood Act.  Section 12(1) of that Act materially provides:

A dividing fence means a fence on the common boundary of adjoining lands.

8. [8]
   Marshall, in disputing that claim, relied on the expert evidence of a licensed surveyor trading as Survey 360 of Anstead, Brisbane, dated 21 July 2020. The tribunal observed that Twidale could have obtained his own expert report, but the suggestion was not then accepted.^[3] At the trial Twidale was content to assert his own view in opposition to the survey evidence,^[4] and to hint darkly, without offering proof, that an image produced by Marshall was ‘photoshopped’.^[5]

Not fresh evidence

9. [9]
   Later, however, Twidale did obtain a surveyor’s report, dated 26 February 2022, several months after the trial concluded^[6]. Clearly, then, it was not before the primary decision maker. In several preliminary decisions of the Appeal Tribunal it is directed that any application to rely on fresh evidence will be heard and determined ‘together with the application for leave to appeal’^[7]. In fact, no such application was made. In any event it would have met the objection that there is no evidence that the suggested fresh evidence was not reasonably obtainable at the time of the trial^[8].  In any event, if it were admitted, it would not seriously affect the result.
10. [10]
    The dispute descended to a debate about the respective positions of two screws in concrete pillar, reminiscent of legendary mediaeval disputes about the number of angels able to sit on the point of a needle. Twidale contended that a screw ‘in the face of the concrete pillar’ determined the precise boundary.^[9] Marshall, on the other hand, submitted that the true boundary marker, as fixed by her surveyor, was a ‘GI nail’, marked with red tape.^[10] A fine distinction was drawn between the surveyor’s screw and one inserted by a builder to carry a string line.

Turns on the facts

11. [11]
    This case turns on its own fact, not on esoteric law. The ultimate factual question is whether the new fence is on Marshall’s property or right on the boundary line. It is common ground that the old fence is slightly but definitely upon Twidale’s land^[11].
12. [12]
    The adjudicator, as the judge of fact, made these findings:

    1. (a)
       `there is strong survey and photographic evidence that the new fence is well within [Marshall’s] property and away from the surveyed boundary line’.^[12] ‘The new fence is shown to be inside [Marshall’s] property by at least [300 to 400 mm]’. Indeed, ‘the photograph of the survey marker in the back corner shows that the new fence … is approximately 600mm inside [Marshall’s] property’.^[13]
    2. (b)
       The [old] fence was considered by both parties to be a sufficient dividing fence … for the time that the parties have been neighbours’.^[14]
    3. (c)
       The boundary survey has determined that the [old] fence sits just inside [Twidale’s] property, such that it would not be practically possible to build another fence on the boundary’.^[15] That is to say, the de-militarised zone was just too narrow to accommodate yet another fence.
13. [13]
    From these findings the orders made duly followed, and need not be recited here.
14. [14]
    On the basis of finding ‘(c)’ the adjudicator applied a provision in subsections 13(1)(c)(ii) and 13(2) of the Neighbourhood Act, deeming the old fence to be a sufficient dividing fence, despite its slight misalignment with the boundary line. Subsection 13(1)(c)(ii) relevantly provides:

A dividing fence is a sufficient dividing fence if … QCAT decides the dividing fence is a sufficient dividing fence.

And subsection 13(2) states:

[T]the existence of a fence, other than a dividing fence, on adjoining land must not be taken into account in deciding whether there is a sufficient dividing fence.

Leave application no retrial

15. [15]
    The limited purpose of an application for leave to appeal is to see whether the primary decision is arguably and significantly affected by appellable error, or a finding that has no support in the evidence:^[16] 
16. [16]
    A leave application is not an occasion to re–run the trial, or second guess’ the decision maker, as if the trial were merely a ‘preliminary skirmish’^[17].  The very purpose of a ‘leave to appeal’ provision in the QCAT Act is to ensure, so far as possible, that decisions of the tribunal are final.  In the spirit and intent of the Act^[18], and in the interests of the public purse and of interests of other litigants in the queue^[19]finality is an important consideration.^[20]

Trial judge’s function

17. [17]
    In the absence of some ‘glaring improbability’^[21] a trial judge’s findings of fact are not normally disturbed on appeal if they have rational support in the evidence, even if another reasonable view is available^[22]. Where reasonable minds may differ a decision cannot properly be called erroneous simply because one conclusion has been preferred to another possible view:^[23]

If there is evidence ... no error of law occurs simply because the judge prefers one version of evidence to another, or one set of inferences to another. That is his function ... Even if the evidence is strongly one way the appeal court may not interfere simply because it reaches a different conclusion … even if it regards the conclusion of the trial judge as against the weight of the evidence.^[24]

18. [18]
    Or as a Queensland judge of appeal observed:

It appears to me that a factual conclusion cannot be treated as infected by legal error unless it is supported by no evidence whatever or unless it is clear, beyond serious argument, that it is wrong. That this Court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.^[25]

19. [19]
    It is not nearly enough for an applicant to express disappointment, or to cherish a subjective feeling that justice has not been done.^[26] It is not appellable error to prefer one witness’s evidence to another’s, or to give a party’s submissions less weight than he or she thinks they deserve.

Conclusion

20. [20]
    Here there is ample evidence to support the adjudicator’s findings of fact, particularly her finding that the new fence is not on the boundary line. No appellable error of law has been demonstrated. Accordingly the application for leave to appeal must be dismissed. 

ORDER

The application for leave to appeal is dismissed.