Neate v Zillotti[2022] QCATA 168

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an appeal from a tribunal Adjudicator in a fencing dispute.  The Adjudicator made an order that a 62 metre long dividing fence and retaining wall below should be rebuilt and the costs shared between the parties.
2. [2]
   The Appeal Tribunal has obtained a copy of the transcript of the tribunal hearing.  Unfortunately a copy of this cannot be provided to the parties for copyright and cost reasons. 
3. [3]
   By leave of the tribunal Ms Zillotti was represented at the hearing by her son, Mr Zillotti.
4. [4]
   Mr Neate now appeals on the grounds that:^[1]

   1. (a)
      there was procedural unfairness because the tribunal received a written summary at the hearing from Mr Zillotti which he had not previously seen;
   2. (b)
      issues about the retaining wall not being on the boundary line, not present at the front of the property, damaged by Ms Zillotti and solely to benefit Ms Zillotti’s land; the implication is that Mr Neate should not have to contribute 50% of the cost of work to the retaining wall;
   3. (c)
      part of the dividing fence is a pool fence, and Mr Neate should not have to contribute to that part of the fence.

Procedural fairness ground of appeal

5. [5]
   Under ground of appeal (a), it is true that at the hearing Mr Zillotti handed to the Adjudicator a pile of documents on which he wished to rely, and which he had not copied to Mr Neate prior to the hearing.  There were 19 pages including a ‘summary’ and a timeline listing events with comments, a list of proposed orders, photographs and various emails and correspondence.  It was unfortunate that these documents were not given to Mr Neate in advance of the hearing so that he had more time to understand them.  It was fortunate that Mr Zillotti had copies of the documents which could be handed to Mr Neate and to the Adjudicator in the hearing.
6. [6]
   Mr Neate himself brought along to the hearing documents and a number of photographs, in addition to the documents attached to the application itself, which he wanted the Adjudicator to look at. It was unfortunate that these documents were not given to Ms Zillotti or her representative Mr Zillotti in advance of the hearing so that they had more time to understand them.  It is also unfortunate that Mr Neate had not brought copies of the documents and photographs to the hearing.
7. [7]
   Despite parties being encouraged to provide their documents to each other in advance of hearings, unfortunately this quite often does not happen, and then as far as is practicable the Adjudicator will try to ensure that everything that is relevant is copied and distributed to be fair to both sides.  This process can use up time allocated for the hearing and is wasteful of the tribunal’s resources.  Bearing in mind the tribunal’s obligation to deal with matters in a way that is economical, informal and quick,^[2] sometimes it is impractical to complete the task.
8. [8]
   Concentrating on the 19 pages of documents given to Mr Neate which is the subject of ground (a) of this appeal, it is unlikely that Mr Neate would have been taken by surprise by any of the emails and other correspondence because he was party to them.  He would not have been taken by surprise by the photographs because he lived on site.  And at the hearing Mr Zillotti orally went through the most important events and comments with the Adjudicator.  Hence Mr Neate was able to provide his responses to these things.  Further it is right to say that there was nothing complicated in what Mr Zillotti was saying and Mr Neate was able to deal with all matters which arose.  In these circumstances I am quite sure that Mr Neate was afforded procedural fairness in the hearing.

Jurisdictional issues

9. [9]
   Before turning to the other grounds of appeal there is a jurisdictional matter which needs to be dealt with.  The fencing application was brought on 6 October 2021.  In the application, Mr Neate was required to state whether he had given a notice to contribute for fencing work to Ms Zillotti and he answered ‘yes, letter dated 28 October 2020’. 
10. [10]
    By section 31(2) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the 2011 Act) such a notice must be in the approved form and by section 31(3) it must be accompanied by at least one written quotation for the work.  By section 31(5) the notice must state the proportions of the cost of the work proposed to be borne by the owners.
11. [11]
    Here the letter dated 28 October 2020 did not state the proportions of the cost of the work proposed by Mr Neate and therefore it may have been defective. 
12. [12]
    Although section 48A of the Acts Interpretation Act 1954 (Qld) provides that strict compliance with a form is not necessary and substantial compliance is sufficient, section 48A(2)(b) makes a failure to include specified and required information a failure properly to complete the form.  Hence it was defective as a notice to contribute under section 31.
13. [13]
    Section 31(6) gives the tribunal its jurisdiction to deal with a fencing matter where there has been a notice to contribute.  If there is no agreement about the work and contributions within a month and then an application can be made to the tribunal within 2 months after the notice to contribute is given.  It is thought that these times can be changed in an appropriate case under section 61 of the QCAT Act (relief from procedural requirements).^[3] 
14. [14]
    The Adjudicator made no such order.  Hence even if the notice to contribute was not defective, Mr Neate’s application to the tribunal based on the notice was out of time.  This means that if the application to the tribunal is regarded as one for a contribution under section 31(6), then the tribunal had no jurisdiction to hear it.
15. [15]
    It is possible however, to make a fencing application to the tribunal which does not rely on section 31(6).  Such an application can be made where an owner applies for an order under section 35 of the Act about fencing work but does not seek a contribution.  This was decided in Collins v O'Rourke & Anor [2019] QCATA 164, [10], where the Appeal Tribunal constituted by Senior Member Aughterson and Member Dr J R Forbes decided that the tribunal has jurisdiction in a fencing matter to make an order under section 35 even where there was no contribution notice at all.  That was a case where the fencing application sought compensation for damage to, or destruction of a dividing fence, removal of attachments, orders to remove a fence and to restrain its re-erection, but where the application was not made under either section 38 or 39 which deal with urgent applications of such a nature.
16. [16]
    Here it is notable that in his fencing application to the tribunal Mr Neate sought an order that Ms Zillotti pay 100% of the cost of the fencing work.  Hence he was not seeking a contribution nor offering to contribute to the cost at all.  Following Collins, it would appear therefore that the tribunal had jurisdiction to hear and determine Mr Neate’s fencing application after all.

Ordering contributions for the retaining wall work

17. [17]
    Turning to ground (b) of the appeal, there is a difficulty with the order which was made with respect to the retaining wall.  The Adjudicator ordered each party to contribute 50% towards the cost of the removal and replacement of the retaining wall.
18. [18]
    This order was purportedly made under section 35(1)(c) of the 2011 Act.  That subsection permits the tribunal to apportion the cost of ‘fencing work’.  Fencing work is defined in section 16 of the 2011 Act as follows:

16 Meaning of fencing work

Fencing work, for a dividing fence, means—

1. (a)
   the design, construction, modification, replacement, removal, repair or maintenance of the whole or part of the dividing fence; and

2. (b)
   the surveying or preparation of land, including the trimming, lopping or removal of vegetation, along or on either side of the common boundary of adjoining lands for a purpose mentioned in paragraph (a);

and includes—

3. (c)
   the planting, replanting and maintenance of a hedge or similar vegetative barrier as the dividing fence; and

4. (d)
   the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as the dividing fence; and

5. (e)
   obtaining an approval required for fencing work.

19. [19]
    By section 11(2), a fence is not a retaining wall and by the Schedule a ‘retaining wall’ is defined as a structure that supports excavated or filled earth so it is clear a retaining wall is not a fence.  It is notable that removal and replacement of a retaining wall is not on the list of work described in section 16 as fencing work.  The closest is in section 16(b): the preparation of land along or on either side of the common boundary of adjoining lands for the purpose of the dividing fence.  It is unlikely that this description could extend to the retaining wall here as it was a substantial one.
20. [20]
    It is true that when deciding an application in relation to fencing work for a dividing fence, under section 35 of the 2011 Act the tribunal can order:

6. (f)
   any other work to be carried out that is necessary to carry out the fencing work ordered under this section including work for a retaining wall;

21. [21]
    This means that where work on a retaining wall is necessary to carry out the fencing work then the tribunal can order that work on the retaining wall is done.  But as can be seen above, the tribunal is unable to order that the cost of such work should be shared.  The reason for the tribunal’s limited jurisdiction over retaining walls has been explained in tribunal cases.  Complicated disputes over responsibility for retaining walls are outside the limited purview of the 2011 Act.^[4]  In practice it means that where the parties are agreed that one side or the other has 100% responsibility for the retaining wall, or in an obvious case that this is so, then the tribunal can make an order for work for the retaining wall.  It is notable that in the two reported cases where such an order was made, there was no contribution ordered – it was the 100% responsibility of one side.^[5]
22. [22]
    It follows that the Adjudicator had no jurisdiction to order Mr Neate to contribute to the cost of removing and replacing the retaining wall.

Pool barrier

23. [23]
    Turning to ground (c) of appeal, Mr Neate challenges the decision made by the Adjudicator that he should have to pay half the cost of replacing that part of the fence which acted as a pool barrier on Ms Zillotti’s land.  The basis for this challenge is that a fence which is a pool barrier is outside the provisions of the 2011 Act.  This is true, but Mr Neate has overlooked the fact that, as the Adjudicator pointed out in the hearing,^[6] there are other provisions which apply to a fence which is a pool barrier.^[7]  The overall effect of those provisions is that where there is a pool only on one side, the adjoining landowners must still usually contribute 50% of the cost of a fence which also acts as a pool barrier, but in so far as that cost is increased by the need for a pool barrier then that increased cost should be borne by the landowner who has the pool which required that extra work.^[8]
24. [24]
    There are exceptions to this usual rule where the fence which is to be replaced is a special purpose fence or more than 1.8m high, neither of which applies here.^[9] 
25. [25]
    At the hearing Mr Neate said he wanted a 2m high Colorbond fence,^[10] and Mr Zillotti agreed to this.^[11]  This was not because of the pool but to avoid damage from growth of vegetation in the future.  Hence there is no increased cost which has arisen because the fence doubles up as a pool barrier.  In these circumstances it is right for Mr Neate to contribute 50% towards the whole fence.

Determination of the appeal

26. [26]
    Since the tribunal had no jurisdiction to order that Mr Neate contribute 50% towards the removal and rebuilding of the retaining wall, it is right for me to give leave to appeal and allow the appeal.

How to dispose of the appeal

27. [27]
    Since I have allowed the appeal because the tribunal made a substantial order which was beyond its jurisdiction, I have allowed the appeal under section 146 of the QCAT Act (deciding appeal on question of law only). 
28. [28]
    This means that I can make one or more of the orders permitted under section 146.  The most appropriate of these would be either to amend the decision or to set it aside altogether and substitute my own decision.  The alternative is to return the matter to the tribunal for reconsideration.
29. [29]
    In deciding what to do, I take into account that Ms Zillotti either herself or through her representative, said on a number of occasions both before the original hearing and during it, that she would pay 100% of the cost of replacing the retaining wall.^[12]  Mr Neate’s evidence about the retaining wall in the hearing was that it was solely the responsibility of Ms Zillotti.^[13]  At the hearing, Mr Zillotti said that he did not necessarily agree that this was correct.^[14]  The Adjudicator did not decide the question of responsibility for the retaining wall and seemed to assume the cost should be born equally in any case.
30. [30]
    I must remove the requirement in the order for Mr Neate to pay 50% of the cost of removing and replacing the retaining wall because the tribunal had no jurisdiction to make this order.  With that removed, if Mr Neate has already paid his share Ms Zillotti will need to reimburse him.  If the work has not yet been done then it seems likely that Ms Zillotti will pay for the cost of this work.  The difficulty for the tribunal is that except where there is agreement or in a simple case, questions of responsibility for a retaining wall are not suitable for determination by the tribunal.
31. [31]
    In the light of this I shall simply amend the tribunal’s order to remove the requirement in the order for Mr Neate to pay 50% of the cost of removing and replacing the retaining wall.