McLeod v Rollason[2023] QCATA 127

1. (1)
   If there is no sufficient dividing fence between 2 parcels of land consisting of adjoining land, an adjoining owner is liable to contribute to carrying out fencing work for a sufficient dividing fence.

1. (c)
   Part 4 of the NDA sets out the process to follow for having adjoining neighbours contribute to fencing work, whereby unless fencing work is urgent, a notice of contribution must be given before fencing work is undertaken (emphasis added):

2. 31Notice to contribute for fencing work

1. (1)
   An owner may require the adjoining owner to contribute, under this chapter, to the carrying out of fencing work for a dividing fence by giving a notice to the adjoining owner.
2. (2)
   The notice must be in the approved form and state the following—

1. (a)
   a description of the land on which the fencing work is proposed to be carried out and, if the fencing work is to construct or replace a dividing fence, the line on which it is proposed to construct or replace the fence;

…

1. (b)
   the type of fencing work proposed to be carried out;
2. (c)
   the estimated cost of the fencing work to be carried out including the cost of labour and materials.

1. (3)
   The notice must be accompanied by a copy of at least 1 written quotation stating the estimated cost of the fencing work to be carried out.
2. (4)
   The owner giving the notice may propose that any cost of the fencing work to be carried out is to be borne other than in equal proportions.
3. (5)
   For subsection (4), the notice must state the proposed proportions.
4. (6)
   If, within 1 month after the notice is given, the adjoining owners have not agreed about the proposed fencing work to be carried out and their contributions to the proposed fencing work, either adjoining owner may, within 2 months after the notice is given, apply to QCAT for an order under section 35.

1. (d)
   There was no suggestion that fencing work was urgent in MCDO1233-22.
2. (e)
   The Rollasons gave evidence (by noting it on their application) that they had delivered a notice to contribute to Mr McLeod on 18 October 2022.
3. (f)
   The Rollasons applied to the tribunal seeking fencing orders on 25 October 2022 which is premature because it is within the required one month waiting period set out in section 31(6) of the NDA.
4. (g)
   The notice of contribution was not attached to the MCD application nor was it produced in evidence, or even discussed, at the hearing.
5. (h)
   Section 61(4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) permits the Tribunal to make an abridgment or extension order of its own motion, and section 61(2) permits this to happen retrospectively, even if the time for doing so has passed.
6. (i)
   In Fisher v Wenzel [2019] QCAT 295 at [34]-[35], the tribunal abridged time under section 61 where Mr and Mrs Fisher had prematurely filed their application in circumstances where Mr and Mrs Wenzel had, a mere two days after receipt of the contribution notices, made abundantly clear that they denied liability and would not contribute anything. The tribunal considered that waiting for the expiry of the first month for negotiation before commencing proceedings by filing an application with the Tribunal would have been “pointless” given the position taken by the Wenzels. 
7. (j)
   However, as said in Pai & Anor v Daubney & Anor [2023] QCATA 39, section 61 must be invoked in the hearing for the discretion to be exercised:

8. [15]
   Section 61 does not spontaneously exert its benign influence. It confers a discretion – not an obligation – that does not operate unless it is invoked in the proceedings in question. Unless and until it is invoked and is favourably exercised, the provisions of section 31(6) inevitably operate.
9. [18]
   …NDA section 61 predicates an actual application by the party desiring extra time, or an explicit initiative by the tribunal.

8. [8]
   According to the audio recording of the hearing and of the delivery of the decision with its reasons, the matter of the missing notice to contribute and the question of the abridgement of time were simply not addressed at all. Thorough consideration was given to the condition of fence, and the fence was found to be inadequate, as well as of the usual fence for the area before the fence order was made.  If it was not for the premature application, the decision appears, on the evidence, to have been well grounded and, in my view, the Appeal Tribunal is unlikely to have disturbed the findings or the decision of the Tribunal below, noting that an application for leave to appeal or appeal is not an occasion for a retrial.^[7]
9. [9]
   It is unfortunate therefore that leave to appeal must be and is granted to Mr McLeod because:

1. (a)
   for the reasons given in paragraph [7] above, there is a clear case of error in the primary decision of the Tribunal below, whereby an order to fence was made grounded upon an application that filed prematurely, without a decision made to abridge time; and
2. (b)
   it is inevitable that Mr McLeod will obtain substantive relief in the proceedings.

Appeal

10. [10]
    The Tribunal fell into an error of law in deciding the MCD application in circumstances where it did not have the jurisdiction to do so because the application was filed prematurely. Accordingly, the appeal should be and is allowed and the decision set aside.
11. [11]
    In deciding the appeal on a question of law, the next step for the Appeal Tribunal is to:^[8]

1. (a)
   return the matter to the MCD jurisdiction to determine; or
2. (b)
   set aside the decision and substitute its own decision.^[9]

10. [12]
    In my view, the evidence before the Appeal Tribunal is more than sufficient to conclude that the MCD application for a fence order is, now, incurably defective, as no section 61 application was made or initiated by the Tribunal. Consistent with the objects of the QCAT Act which include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal, and quick,^[10] in the interests of expediency, I elect to substitute the decision with a decision to dismiss the application in MCDO1233-22.  
11. [13]
    It should be noted that this outcome does not prevent the Rollasons from issuing a further notice to contribute and bringing a fresh MCD application relying upon it (within appropriate time frames). No doubt the resultant delay will have increased the costs to fence, which is unfortunate but will be a matter for updated quotes.  

Orders

14. [14]
    The decision of the Appeal Tribunal is that:

1. (a)
   Leave to appeal is granted.
2. (b)
   The appeal is allowed.
3. (c)
   The decision of 14 June 2023 is set aside.
4. (d)
   The application in MCDO1233-22 is dismissed.