Seaview Park v Furness[2022] QCATA 177

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an application for leave to appeal and, if granted, an appeal against the orders of a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – Dividing Fences.
2. [2]
   The substantive dispute is between the Applicant, the relevant Body Corporate in a community titles scheme in which the Respondent and his partner are lot owners, and the Respondent. It arises out of issues at the point of the boundary between the Respondent’s lot and some common property of the scheme near the place of entry onto the scheme land from the adjoining public road.
3. [3]
   The dispute, in one form or another, has been going on between the parties since around 2013.
4. [4]
   When the Respondent and his partner bought their lot in the community titles scheme, the rail on which the electronic gate that regulates motor vehicle ingress and egress from the scheme land rolled when opening, straddled the unfenced boundary line between their lot and the scheme’s common property. That common property is the road into the scheme from the public road. That rail jutted out over a couple of metres onto their land.
5. [5]
   The Respondent sought to erect a fence along the boundary between his property and the common property and was content to build it around the gate’s rail, so as not to prevent the gate from being able to be used or having to be replaced with a different mechanism. He began negotiating with the Body Corporate of the scheme.
6. [6]
   Agreement was apparently reached with the Body Corporate with a resolution being passed at the 2014 Annual General Meeting in the following terms:-

LAND EXCHANGE

Submitted by owner

Lot 39 Josh Furness

That the Body Corporate acknowledges that the existing gate passes onto Lot 39. In exchange, the owner of Lot 39 will be permitted exclusive use of similar size common property, as shown in attached photograph. The fence will be built to suit current gate track. Lot 39 will be responsible for cost and maintenance of the fence.

7. [7]
   That motion was not passed unanimously without dissent, but by majority only. It is not a matter of dispute now that under s 62(2) of the Body Corporate and Community Management Act 1997 (Qld) (“the BCCMA”), a motion without dissent was required to effect such a change as that to the Community Management Statement applicable to the particular scheme.
8. [8]
   Some part, but not all of the fence was erected by the Respondent after that. However, over the years since, the Respondent, for various reasons that are not completely clear to me, did not complete the job. When he started to do some more work on it, the Body Corporate, with a new management committee (some members being new owners in the scheme who were not there in 2014), served a stop-work notice on him. The Respondent stopped work and began further negotiations with the Body Corporate in respect of the completion of the fence, including seeking a contribution towards a small part of the total cost of the construction of the concrete pier and block fence being constructed.
9. [9]
   The management committee has been unwilling to give consent to any more work. It is apparently unhappy with aspects of the construction of the fence, including the deficiency in the manner in which the 2014 motion was passed and the fact that some part of the fence has been erected not on the exact boundary line, but some ten or more centimetres on the common property side of the line. They want parts of the fence to be removed and for it to be rebuilt on the actual boundary, now proposing to replace the existing gate with one that does not pass onto the Respondent’s property. There are, unfortunately, conflicts between the Respondent and members of the management committee that impact upon their ability to communicate and co-operatively resolve their differences.
10. [10]
    Ultimately, in 2021, the Respondent applied to this Tribunal in its Minor Civil Dispute jurisdiction for orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“the NDA”). He applied for an order about the line on which fencing work is to be carried out, an order about the amount the parties have to contribute or pay for fencing work and an order for payment of the filing fee of the application. He sought a couple of other orders that he readily conceded could not or should not be made as the jurisdiction to make them clearly only applied to dividing fences that are also a pool barrier, which this fence is not.
11. [11]
    The matter proceeded to a hearing before a Magistrate sitting as a Queensland Civil and Administrative Tribunal member in the Tribunal’s Minor Civil Dispute – Dividing Fences jurisdiction. The matter was heard in Townsville on 20 September 2021. The Respondent appeared in person and two members of the Management Committee of the Body Corporate also appeared in person. The Magistrate heard them all and gave them the opportunity to put some further written submissions to her in the days after the hearing. They did that.
12. [12]
    Her Honour delivered a decision on 5 November, 2021. She began by stating:

This matter is couched as a fence dispute but is also a body corporate and neighbour’s dispute with a history stretching back about 8 years.

13. [13]
    After then setting out the history of the dispute, her Honour said:

The fence is now built, and the parties need a pragmatic way forward to hopefully resolve the conflict. To do so they need more than just an order for the cost of the fence and I rely upon the provisions of the Queensland Civil and Administrative Tribunal Act to do so.

14. [14]
    Her Honour then ordered:-

1. The applicant obtains and pays the cost of any necessary council approval or the fence he has constructed.
2. The respondent obtains and pays the cost of any necessary council approval for the fence it has constructed (referred to as the side body corporate fence in the amended application)
3. The Community Management Statement be amended and the following clauses be inserted:
   1. The owners and occupiers of Lot 39 have exclusive use of that part of the common property upon which the fence constructed in 2021 is situated (“exclusive use area”);
   2. The owners and occupiers of Lot 39 are responsible for the care and maintenance of the exclusive use area;
   3. That there be an easement over Lot 39 for the area utilised by the respondent’s gate.
4. Within 90 days of these orders the applicant obtain and pay the cost of a survey of the exclusive use area and easement.
5. Within 60 days of receiving the survey, the respondent registers the amendments at its own cost.
6. Within 90 days of these orders, the respondent pay the applicant the sum of $3,448.50 (which represents half of the cost of a paling fence).

This Application

15. [15]
    The Applicant relies on its written submissions filed with the Application on 2 February 2022. It relies on a number of grounds. They are:

    1. (a)
       The Member erred by hearing the application in the Minor Civil Disputes jurisdiction.
    2. (b)
       The Member erred by ordering that a new Community Management Statement be recorded to alter Body Corporate Common Property and create Easements.
    3. (c)
       The Member erred in finding that the fence (concrete block wall) in dispute had already been built.
    4. (d)
       The Member erred in failing to consider or address inconsistent submissions with respect to the completion of the fence.
    5. (e)
       The Member erred in dealing with the matter given it involved an encroachment dispute in accordance with the Property Law Act 1974 (Qld) (“the PLA”).
    6. (f)
       The Member erred by enforcing a 2014 motion of the Body Corporate to record a new Community Management Statement which was not passed in accordance with s 62(2) of the BCCMA.
16. [16]
    I am of the view that the grounds set out in (a), (b), (e) and (f) above are all essentially involving the same point – the jurisdiction of the Magistrate sitting as a Member of the Tribunal hearing a minor civil dispute dealing with a dividing fence.
17. [17]
    I am also of the view that the Applicant correctly submits the following:-

    1. (a)
       Pursuant to s 171(2) of the Queensland Civil and Administrative Appeal Act 2009 (Qld) (“the QCAT Act”), every Magistrate is an ordinary member of the tribunal for minor civil disputes.
    2. (b)
       Pursuant to s 11 of the QCAT Act, the Tribunal has jurisdiction to hear Minor Civil Disputes.
    3. (c)
       Minor Civil Dispute in the QCAT Act is defined in Schedule 3 of the QCAT Act to include a dispute under chapter 2 of the NDA and where the dispute includes a claim for an amount not more than the prescribed amount (which is $25,000).
    4. (d)
       That the Member exercising minor civil dispute jurisdiction did not have the jurisdiction to order that a new Community Management Statement be recorded to alter the scheme’s common property and create easements.
    5. (e)
       Section 35(1) of the NDA sets out the type of orders which the Member sitting in the Minor Civil Dispute – Dividing Fences jurisdiction could lawfully make on the application that was before her. The orders the Member made directed at the recording of amendments to the applicable Community Management Statement are not within the scope of the orders limited by that section.
18. [18]
    The Applicant goes on to submit that there is no provision within the definition of minor civil dispute which provided the Member with jurisdiction to deal with “a matter of this kind” in the minor civil dispute jurisdiction and that it should have been dismissed and referred to the Body Corporate Adjudicator or QCAT in its Other Civil Disputes Jurisdiction. The Applicant also submits that there was clearly an “encroachment issue” and disputes relating to encroachments are within the exclusive jurisdiction of the Supreme Court of Queensland pursuant to s 184 of the PLA.
19. [19]
    With respect to the Applicant, I am not convinced that these latter submissions (set out in [18] above) are completely correct. I do not accept that the matter should have been dismissed and referred to the Body Corporate Adjudicator or QCAT in its Other Civil Disputes Jurisdiction or that the dispute is one that was within the exclusive jurisdiction of the Supreme Court pursuant to s 184 of the PLA. In respect of the latter, whilst I agree that the Supreme Court has the jurisdiction to deal with encroachment matters, I do not agree that whenever there is an encroachment issue in respect of a fence (particularly one that might be described as a wall along a common boundary) that the Supreme Court’s jurisdiction under the PLA to hear and determine a dispute brought before it, completely ousts jurisdiction such as that properly conferred on the Tribunal by the NDA
20. [20]
    The three orders that the Respondent seriously sought in his first instance application that I set out in [10] above were within the jurisdiction of the Member sitting as the Tribunal in its Minor Civil Dispute – Dividing Fences jurisdiction.  Section 35 of the NDA, that sets out the orders that the Member could lawfully make in such an application, provides as follows:

1. (1)
   QCAT may, for an application in relation to fencing work for a dividing fence, decide and order any 1 or more of the following:

   1. the line on which the fencing work is to be carried out, whether or not that line is on the common boundary of the adjoining land;
   2. the fencing work to be carried out, including the kind of dividing fence involved;
   3. the way in which contributions for the fencing work are to be apportioned or reapportioned or the amount that each adjoining owner is liable to pay for the fencing work;
   4. the part of the dividing fence to be constructed or repaired by either adjoining owner;
   5. the time by which the fencing work is to be carried out;
   6. 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;
   7. that, in the circumstances, no dividing fence is required for all or part of the boundary of the adjoining lands;
   8. that a fence has been used, or could reasonably be used, as a dividing fence under section 15;
   9. the amount of compensation payable to an adjoining owner for damage or destruction to a dividing fence caused by another adjoining owner or a person mentioned in section 26(1)(b);
   10. that an adjoining owner remove a thing attached to a dividing fence and restore the dividing fence;
   11. the amount of compensation payable to an adjoining owner for the removal of a fence under section 33(3).
2. (2)
   The occupation of land on either side of a dividing fence, as a result of an order that fencing work is to be carried out on a line other than on the common boundary of the adjoining lands, does not affect the title to, or possession of, the land.

21. [21]
    Her Honour, the Member, acted within the power conferred upon her when she made the order that within 90 days, the Body Corporate pay Mr Furness the sum of $3,448.50 representing half of the quoted cost of erecting a paling fence. Her Honour would have been entirely within the power had she made an order that the fence Mr Furness had already constructed could remain where it was constructed, whether that was on the boundary or not, and she would have been within power if she had ordered that Mr Furness could complete the construction of that part of the fence that was not yet completed, in the same block work construction that the completed part was already made of, along the actual boundary line between Lot 39 and the common property. Had her Honour limited her orders to that, I do not consider the Applicant would have been able to mount a successful application for leave to appeal. However, respectfully, her Honour did not do that.
22. [22]
    Had her Honour made orders like that, then pursuant to s 35(2) of the NDA set out above, occupation of the land on either side of the fence that did not sit on the actual boundary line of the common property would not affect the title to, or possession of, the land. Given that the construction of the fence on the line that it was being constructed on was being done as a matter of convenience for all concerned – providing the security for his children that the Respondent was seeking and providing the use of the gate’s rail for all of the people entering the scheme’s land via the common property of the access road – and given that the provision of both of those things did not necessarily require a permanent solution, it would seem that orders under the NDA that did not affect the title to, or possession of, the land on Lot 39 or the common property, might very well have been enough to resolve the dispute.
23. [23]
    Should either the Respondent, Mr Furness, or the Applicant, the Body Corporate, have wanted anything more permanent than that in terms of rights of exclusive use of common property and easements onto Lot 39 being agreed to and recorded on the scheme’s Community Management Statement, then, absent agreement, dispute resolution processes provided for in the BCCMA could have been utilised. Should the Body Corporate have wanted anything more permanent and conclusive in respect of the fence that is currently constructed on some of the common property, it could have utilised the right to bring proceedings seeking relief in the Supreme Court under the encroachment provisions of the PLA. Neither party did that. Both were apparently content to treat the matter as a dividing fences dispute and have the Magistrate sitting as a Tribunal Member hear it. Whilst I respectfully appreciate that neither of the men who appeared for the Body Corporate are trained lawyers, I read nowhere in the transcript either of them arguing that the Tribunal Member should dismiss the application because her Honour did not have the jurisdiction to hear and determine the dispute or to give appropriate relief. At least one of those men appears, at least from the transcript, to have had a reasonable understanding of the provisions of the NDA and the BCCMA.
24. [24]
    I am also satisfied that it is not just for the parties appearing before the Tribunal in its Minor Civil Disputes jurisdiction to be alert to the possibility of the Member acting without power. Respectfully, it is for the Member to be conscious of the statutory limits to her power in this jurisdiction and, it is worth remarking, I consider, that there are many such limits. Being aware of them all in the extremely busy, time and resource-poor setting of a Magistrate sitting as a Tribunal Member in a regional centre of this far-flung State is an enormous ask. Trying to resolve the dispute being heard in a just, convenient and frugal manner, though commendable, does not excuse the Member from the obligation to take the jurisdictional point herself if the parties do not raise it. Again, respectfully, it does not excuse the Member from not restraining herself from going beyond the limited powers conferred upon her for the purposes of resolving the dispute that has been brought before her.^[1]

The Respondent’s Submissions

25. [25]
    The Respondent submitted that the learned Magistrate sitting as the Tribunal Member acted within jurisdiction. To the extent that she made the orders that she was empowered to make pursuant to the NDA, it is now clear that I accept that part of the Respondent’s submission is correct.
26. [26]
    However, the Respondent went on to submit that the Orders for the making of a new Community Management Statement were within power as the Member had power pursuant to s 60(1) and (2) and s 114 of the QCAT Act.
27. [27]
    Respectfully, I disagree. Section 60 empowers a Tribunal Member to make a declaration in a proceeding. None of the orders made by the learned Magistrate sitting as a Member in this matter were declarations and nor could they be.
28. [28]
    Section 114 of the QCAT Act gives the Tribunal power to impose a condition on the decision or to make an ancillary order or direction considered appropriate for achieving the purpose for which the Tribunal may exercise the primary power. These are not the conferral of additional primary powers. An example of a condition that can be imposed is a condition that something required to be done by the decision be done within a stated period. An example of an ancillary order or direction is an order adjourning the proceedings or an order that a party give an undertaking to the Tribunal. The power given by this section is not intended to create extra jurisdiction where it does not otherwise exist. It cannot be used to do so.  
29. [29]
    For all the reasons just set out, I am satisfied that the learned Magistrate sitting as a Tribunal Member erred at law in making several of the orders that she did.
30. [30]
    The Applicant also submitted that her Honour erred in fact, when she effectively made a finding that the fence the subject of the dispute “is now built.” I accept that is also a correct submission. The transcript of the hearing clearly reveals that the Respondent, Mr Furness, did not dispute the Applicant’s assertions that the fence was not totally completed. I am satisfied that her Honour’s decision also reflects an error of fact in that respect.

Leave to Appeal

31. [31]
    As the first instance hearing was within the Tribunal’s Minor Civil Dispute jurisdiction, the Applicant is required to obtain leave to appeal to this Appeal Tribunal.^[2] Generally said, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.^[3] 
32. [32]
    As I have demonstrated already, I am satisfied that the decision was attended by errors, errors of law and an error of fact. I am satisfied that the grant of leave is necessary to correct a substantial injustice caused by those errors. Jurisdictional error generally results in injustice. I am also satisfied that the appeal should be allowed.

How should the matter be dealt with now?

33. [33]
    Pursuant to s 146 and s 147 of the QCAT Act, having allowed the appeal, I can now do any of the following:

2. (a)
   confirm or amend the decision; or

2. (b)
   set aside the decision and substitute this Appeal Tribunal’s own decision; or

3. (c)
   set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration;

1. (i)
   with or without the hearing of additional evidence as directed by this appeal tribunal; and

2. (ii)
   with the other directions this appeal tribunal considers appropriate; or

3. (d)
   (d) make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).

34. [34]
    The intent of her Honour’s orders that she were within power is clear. I will set aside the orders appealed against and make orders to that effect in substitution therefore, so as to save the parties the inconvenience and expense of a re-hearing of their fencing dispute.
35. [35]
    Accordingly, I will order:

1. That the orders of her Honour, Magistrate Keegan, sitting as the Tribunal, of 5 November 2021 are set aside.
2. That within 90 days of these orders, the Respondent, Mr Furness, cause the completion of that part of the dividing fence between Lot 39 and the common property of Seaview Park CTS 22919 that remains unfinished, to be completed along the boundary line between Lot 39 and that common property.
3. That the Respondent, Mr Furness, cause that work required by (ii) hereof, to be done in the same construction manner as the existing part of that fence already constructed.
4. That within 90 days of these orders, the Applicant, the Body Corporate for Seaview Park CTS 22919, pay the Respondent, Mr Furness, the sum of $3,448.50 (which represents half of the cost of a paling fence as quoted).

36. [36]
    I do not consider that there are circumstances that justify the making of an order as to costs.
37. [37]
    The Applicant did propose several sets of alternative orders in the event that it was successful. One of those sets of proposed orders, seemingly premised on an outcome not too dissimilar to what I have determined, still sought orders relating to construction in accordance with engineered plans, council approval and, conditioned upon those matters being complied with, the conferral of exclusive use rights on the owners of Lot 39, the creation of an easement for the gate rail, obtaining a survey and the registering of a fresh Community Management Statement.
38. [38]
    I will not make those orders. It should be clear now that I consider there is no jurisdiction to do so in this Minor Civil Dispute – Dividing Fences matter to make all or, at least, most of those. Particularly on the evidence that was before the Tribunal, I do not consider that the orders for construction in accordance with engineered plans and for council approval should be made. If the parties wish to continue their dispute, particularly to the point of dealing with the issues of an exclusive use area, the easement and the registration of a fresh Community Management Statement, they will need to utilise the dispute resolution provisions of the BCCMA to do so. However, having regard to the clear proposed pathway to complete resolution of the dispute set out by the Applicant in the third alternative set of orders it proposed in its submissions, the Respondent, Mr Furness, should easily be able to see what, I consider at least, is reasonably proposed by the Applicant to achieve that end. He might consider it a course worth following.