Ferrier v Beerling[2023] QCATA 33

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Stephen Ferrier and Kerry Heath are joint owners of a property, located at 20 Crescent Road, Eumundi, Queensland. Mark William Beerling and Jennifer Susan Beerling are joint owners of an adjacent property.
2. [2]
   The Beerlings served a ‘Notice to contribute to fencing work – Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 – Section 31,’ dated 26 May 2020 on the Ferriers/Heaths. In that notice, the Beerlings asked the Ferrier/Heaths to contribute equally to the cost of constructing a new timber or treated pine fence on their common boundary. The notice was returned to the Beerlings on 26 June 2020, together with a handwritten note stating:

“No, thank you. We already have a fence.”

3. [3]
   The Beerlings sought the Tribunal’s assistance to resolve the matter.
4. [4]
   The Tribunal ordered that a new dividing fence be erected on the common boundary between the properties of the parties in accordance with the KYMZI Construction quote dated 7 December 2021. The fence construction was to be arranged by the Beerlings. The Ferrier/Heaths were to pay the Beerlings $4071.58 within 14 days of completion of the fence and $61.60 for half of the QCAT filing fee.
5. [5]
   The Ferrier/Heaths want to appeal the Tribunal’s decision.
6. [6]
   Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.^[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.^[2]
7. [7]
   Finality in litigation is highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.^[3]
8. [8]
   To support their appeal, the Ferrier/Heaths attached a quote from Specialised Property Fencing Pty Ltd dated 9 June 2022. They submit that the KYMZI quote lacks authenticity and does not adequately itemise the costs described. They object to the inclusion of the “plinth” option, as this was not included in original quote.
9. [9]
   The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.^[4] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the Ferrier/Heaths have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?
10. [10]
    An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing.^[5] The Ferrier/Heaths have provided no valid explanation as to why this material was not available earlier.^[6] That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
11. [11]
    The Ferrier/Heaths submit that Order 2 be amended, or alternatively dismissed, because it conflicts with Order 2(e) of the directions made on 29 November 2021. That direction required the Beerlings to obtain an updated quote from Specialised Property Fencing. The Ferrier/Heaths therefore ask that Specialised Property Fencing undertake construction of the fence, not KYMZI.
12. [12]
    In a letter dated 13 February 2022, the Beerlings explained that Specialised Property Fencing were unable to provide an updated quote. The KYMZI quote was provided instead.
13. [13]
    The Ferrier/Heaths had ample opportunity to address their concerns regarding the KYMZI quote, either prior to or at the hearing, but they did not. The Tribunal accepted the KYMZI quote based on the information before it. This is not a ground of appeal, as no error of fact or law is raised
14. [14]
    The Ferrier/Heaths want the Appeal Tribunal to “[reconsider] the construction features of the fence quoted” by KYMZI. They submit that the Tribunal erred in ordering the construction of a “timber paling fence” because it did not adequately consult the fencing surveys that were tendered before the hearing. The Ferrier/Heaths want the Tribunal to review their quote for a chain link fence or, alternatively, dismiss the project entirely.
15. [15]
    Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.^[7]
16. [16]
    The Tribunal investigated the type of dividing fence normally used in the area.^[8] Both parties supplied dividing fence surveys and both surveys rendered similar results. The Ferrier/Heaths survey shows that approximately 55 percent of fenced houses in the area were timber.^[9] The Beerlings’ survey show that 66 percent were timber.^[10] The Tribunal therefore found that the “overwhelming majority of fencing, where there is fencing in the area…is timber fences”.^[11] The Tribunal considered it appropriate to make a dividing fence order in the circumstances, based on further oral evidence, identification surveys and a sketch plan.
17. [17]
    The evidence supports the Tribunals finding. There is no reason for the Appeal Tribunal to depart from those findings by making an order that a chain link fence is appropriate, or by dismissing project all together.
18. [18]
    The Ferrier/Heaths submit that, to ensure “consumer rights and protections” are upheld, Order 3 be “amended” so that:

    1. (i)
       all transaction documents relating to the fencing product be issued to include their contact details;
    2. (ii)
       they are consulted before any arrangements are made for construction and design – specifically, which side the palings will face; and
    3. (iii)
       they are recognised as co-owners of the fence for insurance purposes.
19. [19]
    If the Ferrier/Heaths wanted “consumer protections”, they should have responded to the original notice contribute to fencing work. Their failure to cooperate from the start of the dispute has forced the Beerlings to bear all the rights and responsibilities associated with construction of the fence. The Beerlings get the consumer protections by contracting with fencer, but also the obligations.
20. [20]
    The Ferrier/Heaths ask that Order 5 be amended so their contribution of $4071.58 be paid directly to the company which is providing the fence. They ask that Order 6 be amended so the $61.60 filing fee be paid directly to QCAT.
21. [21]
    The Tribunal did not err in ordering that compensation be paid directly to the Beerlings. That is the usual order when one neighbour is forced to ask for the Tribunal’s assistance. The Beerlings have already paid the filing fee. The order that the Beerlings be refunded half the filing fee they have paid is appropriate.
22. [22]
    Compensation in the amount of $1513.60 is also claimed for removal of the existing dog wire fence. Again, the $1513.60 claimed as compensation is not a valid ground of appeal because removal of the fence occurred following the Tribunal’s orders. This concern could have been foreshadowed at hearing. ^[12]
23. [23]
    There is no reasonably arguable case the that the Tribunal was in error. There was no evidence indicating that a substantial injustice will result if leave is not granted.
24. [24]
    Notably, however, the Beerlings have undertaken in their submissions to:

    1. (a)
       remove the “plinth” option from the KYMZI quote;
    2. (b)
       have the Ferrier/Heaths arrange for Specialised Property Fencing to construct the fence in accordance with the quotation dated 9 June 2022;
    3. (c)
       allow the Ferrier/Heaths to decide which side the palings will face;
    4. (d)
       issue a receipt of payment when the sum of $4071.58 and the $61.60 filing fee is paid;
    5. (e)
       return the 35 metres of dog wire which was removed when clearing the boundary line.
25. [25]
    These concessions are not grounds for appeal. If the Ferrier/Heaths had responded appropriately to the notice to fence, they may have been able to negotiate these concessions without the Tribunal’s intervention. It is not too late, however, for the parties to renegotiate their current positions on their own terms.

Orders

1. Leave to appeal refused.