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  4. Lauren Kay George Pty Ltd as trustee for the Lauren Kay George family trust v Nicole Wolf - [2023] QCATA 78

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Lauren Kay George Pty Ltd as trustee for the Lauren Kay George family trust v Nicole Wolf[2023] QCATA 78

Lauren Kay George Pty Ltd as trustee for the Lauren Kay George family trust v Nicole Wolf[2023] QCATA 78

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Lauren Kay George Pty Ltd as trustee for the Lauren Kay George family trust v Nicole Wolf & Anor [2023] QCATA 78

PARTIES:

Lauren Kay George Pty Ltd as trustee for the Lauren Kay George family trust

(applicant/appellant)

v

Nicole Wolf

(first respondent)

Robert wolf

(second respondent)

APPLICATION NO/S:

APL198-22

ORIGINATING APPLICATION NO/S:

Q57/21

MATTER TYPE:

Appeals

DELIVERED ON:

26 June 2023

HEARING DATE:

19 June 2023

HEARD AT:

Brisbane

DECISION OF:

A/Deputy President Brown

ORDERS:

  1. The application to rely upon further evidence is refused.
  2. Leave to appeal granted.
  3. Appeal allowed.
  4. The decision made 14 October 2021 is set aside.
  5. The matter is returned to a differently constituted tribunal for determination according to law and in accordance with these reasons.

CATCHWORDS:

APPEAL – GENEARL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the Tribunal was required to address the application of s 28 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – where the Tribunal failed to consider whether fencing work was urgent – where the Tribunal erred in law in making orders beyond power

APPEAL – GENEARL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where the Tribunal has a duty to give reasons – whether the Tribunal failed to give adequate reasons for the decision

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 28, s 32, s 35

Aurisch v Fong & Anor [2020] QCAT 380

Body Corporate of Tranquility Court v Harrigan [2015] QCATA 136

Deveze v Suosaari [2021] QCATA 106

Ericson v Queensland Building Services Authority [2013] QCA 391

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    An adjudicator refused an application by the applicant Lauren Kay George Pty Ltd as trustee for the Lauren Kay George family trust that the respondents Nicole Wolf and Robert Wolf contribute to the cost of the repair of a dividing fence. The adjudicator made further orders regarding the removal by the respondents of panels attached to the fence and for the trimming of a bamboo hedge situated on the respondents’ land. The applicant appeals the decision.
  1. [2]
    A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal.[1] Leave to appeal is required from a decision in the Tribunal’s minor civil disputes jurisdiction.[2] Fencing disputes are within the minor civil disputes jurisdiction. The principles to be applied when considering whether to grant leave to appeal are:
    1. (a)
      Is there a reasonably arguable case of error in the primary decision;
    2. (b)
      Is there a prospect that the applicant will obtain substantive relief;
    3. (c)
      Is leave necessary to correct a substantial injustice caused by error; and
    4. (d)
      Is there a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[3]
  2. [3]
    In deciding an appeal on a question of law the appeal tribunal may confirm or amend the original decision; set aside the decision and substitute its own decision; set aside the decision and return the matter to the tribunal for reconsideration.[4] The Appeal Tribunal may only set aside the decision under appeal and substitute its own decision if the determination of the question of law results in the matter as a whole being resolved in the appellant’s favour.[5]
  3. [4]
    An appeal on a question of fact or mixed law and fact must, subject to leave to appeal being granted, be decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal.[6]

Background

  1. [5]
    In March 2021 a tree situated on the respondents’ land fell down, landing on the dividing fence between the parties’ properties. On 7 August 2021 the applicant gave the respondents a notice to contribute to the cost of repairing the fence.[7] On 11 August 2011 the repair work was undertaken. The respondents did not agree to contribute to the cost of the repair work. On 17 August 2021 the applicant commenced the proceeding below.
  2. [6]
    The hearing proceeded before an adjudicator on 14 October 2021. All of the parties were present. The hearing was conducted in the manner usual in proceedings for minor civil disputes, that is to say with a degree of informality and with the adjudicator seeking to have the parties clarify the issues for determination while also giving evidence.
  3. [7]
    The learned adjudicator made a number of orders including declaring the dividing fence to be a sufficient dividing fence and estopping the applicant from seeking a contribution to the cost of the fencing work. The learned adjudicator also made orders requiring the respondents to remove screening attached to the fence, authorising the applicant to attach brackets to the fence and requiring the respondents to trim bamboo situated on their property along the fence line.

The grounds of appeal

  1. [8]
    The applicant relies upon the following grounds of appeal:
    1. (a)
      The learned adjudicator erred in relying on photographs of the fence tendered by the respondents in circumstances where the applicant had not been provided with copies of the photographs before the hearing. The applicant says that she was thereby denied procedural fairness; and
    2. (b)
      The learned adjudicator erred in finding that the dividing fence was a sufficient dividing fence.

Application to rely upon further evidence

  1. [9]
    The applicant seeks to rely upon further evidence in the form of photographs depicting branches from trees situated on the respondents’ land overhanging the applicant’s land. The applicant says that the relevance of the photographs is in evidencing the ongoing issues relating to trees situated on the respondent’s property and the impact of the trees on the applicant’s property. The respondents’ say that the photographs depict a different part of the dividing fence to that where the tree fell and as such are irrelevant to the issues in dispute between the parties.
  2. [10]
    Additional evidence may be permitted if the following requirements are satisfied:
    1. (a)
      The evidence could not have been obtained with reasonable diligence for use at the original hearing;
    2. (b)
      If given, the evidence would probably have an important influence on the result of the case (although it need not be decisive); and
    3. (c)
      The evidence is credible.[8]
  3. [11]
    The applicant offers no explanation as to why the photographs could not have been obtained at the time of the original hearing. Nor am I persuaded that the photographs would have had an important influence on the decision below. The photographs are not, for example, of assistance in identifying the damage to the fence caused by the fallen tree. Indeed, it is difficult to apprehend the relevance of the photographs to the dispute between the parties.
  4. [12]
    The application to rely upon the further evidence is refused.

Consideration

  1. [13]
    Section 31 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (ND Act) requires an owner to give to an adjoining owner a notice to contribute to the cost of fencing work before carrying out the work. Unless fencing work is urgent, a notice of contribution must be given before fencing work is undertaken. Where fencing work is not urgent and an owner undertakes work in the absence of an agreement with the adjoining owner or an order of the Tribunal, the owner cannot claim contribution from the adjoining owner.[9]
  2. [14]
    Section 28 of the ND Act provides:
  1. 28
    Urgent fencing work
  1. (1)
    This section applies if all or part of a dividing fence is damaged or destroyed and, in the circumstances, urgent fencing work is required.
  1. (2)
    If it is impracticable to give a notice under section 31, an owner may, without giving the notice, carry out the fencing work required to restore the dividing fence to a reasonable standard, having regard to its state before the damage or destruction.
  1. Note—
  1. Contribution from an adjoining owner to the cost of the urgent fencing work may be obtained after giving a notice to the adjoining owner under section 32.
  1. (3)
    The cause of the damage or destruction does not affect the operation of this section.
  1. [15]
    Section 32 of the ND Act deals with contribution notices for urgent fencing work:
  1. 32
    Notice to contribute for urgent fencing work
  1. (1)
    This section applies if an owner carried out fencing work under section 28.
  1. (2)
    The owner may require the adjoining owner to contribute, under this chapter, to any reasonable cost incurred for the fencing work by giving a notice to the adjoining owner.
  1. (3)
    The notice must be in the approved form and state the following—
  1. (a)
    a description of the land on which the fencing work was carried out;
  1. (b)
    the reason urgent fencing work was required;
  1. (c)
    the type of fencing work carried out;
  1. (d)
    any cost incurred for the fencing work and a receipt for the cost.
  1. (4)
    The owner giving the notice may propose that the contribution to carrying out the fencing work is to be borne other than in equal proportions.
  1. (5)
    For subsection (4), the notice must state the proposed proportions.
  1. (6)
    If, within 1 month after the notice is given, the adjoining owners have not agreed about their contributions to carrying out the fencing work, either adjoining owner may, within 2 months after the notice is given, apply to QCAT for an order under section 35.
  1. [16]
    The learned adjudicator sought clarification from the applicant at the commencement of the hearing as to whether the application related to urgent fencing work. The applicant confirmed that it did. Indeed, it could not otherwise have been the case. If the application did not relate to contribution for urgent fencing work, the fact that the work had already been undertaken would have been fatal to the claim for contribution.
  2. [17]
    The learned adjudicator observed that the notice to contribute given by the applicant to the respondents was in the incorrect form, being a notice pursuant to s 31 of the ND Act, rather than s 32 which applies to urgent fencing work. The learned adjudicator waived compliance by the applicant with the requirement to give to the respondents a notice pursuant to s 32 and also waived compliance with the timeframes referred to in s 32. The learned adjudicator proceeded on the basis that the notice had been given as required and that the proceeding had been validly commenced by the applicant notwithstanding the application having been filed prematurely.
  1. [18]
    The learned adjudicator found that the fence between the parties’ properties was a sufficient dividing fence.[10]Regrettably that is the extent of the findings made by the learned adjudicator.
  2. [19]
    The learned adjudicator was required to address the application of s 28 of the ND Act and, specifically, determine whether the fencing work was urgent. This the learned adjudicator failed to do. Rather, the learned adjudicator proceeded to determine whether the fence between the parties’ properties was a sufficient dividing fence and decided that it was. However, the need to determine that question did not arise until a finding was made that the fencing work was urgent. If a finding was made that the fencing work was not urgent, then the application should have been dismissed.
  3. [20]
    The difficulty in the present is that the absence of reasons renders the learned adjudicator’s decision so opaque as to withstand reasonable scrutiny. 
  4. [21]
    Courts and tribunals have a duty to give reasons for a decision.[11] The failure to give adequate reasons is a question of law. Reasons will be inadequate if the court or tribunal fails to explain a conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion.[12] Reasons should provide an evident and intelligible justification for a decision[13] and sufficiently expose the path of reasoning.[14]
  5. [22]
    If the learned adjudicator was satisfied that the fencing work was urgent, this is not apparent from the reasons. There was no finding made to this effect nor any indication from the reasons that the learned adjudicator considered the matters at s 28 of the ND Act. As I have earlier observed, if the learned adjudicator was not satisfied the fencing work was urgent, the Tribunal did not have jurisdiction to decide the issue of contribution to the cost of the fencing work and the application should have been dismissed.[15] The reasons clearly fail to reveal the learned adjudicator’s path of reasoning. The learned adjudicator erred in law in failing to consider and apply the relevant provisions of the ND Act relating to urgent fencing work and erred in law in failing to give adequate reasons for the decision.
  6. [23]
    Aside the errors of law identified, and by way of observation only, it is difficult to apprehend how the fencing work could have been urgent. The damage to the fence caused by the falling tree was occasioned in March 2021. It was not until some five months later that the applicant gave the notice to contribute to the respondents. Delays of significantly less time have been found to demonstrate an absence of urgency.[16]
  7. [24]
    The learned adjudicator ordered the respondents to trim the bamboo planted on their property. Section 35 of the ND Act sets out the orders the Tribunal may make in relation to fencing work for a dividing fence. The order for the trimming of the bamboo is not one within the contemplation of s 35. The learned adjudicator had no power to make the order and thereby erred in law.
  8. [25]
    The learned adjudicator ordered that the applicant be estopped from seeking a contribution from the respondents in respect of the work undertaken to the dividing fence. The order is a curious one. As I have explained, if the fencing work was not urgent, the application should have been dismissed. That would have put an end to the applicant’s attempts to seek a contribution from the respondents for the fencing work. If the learned adjudicator was satisfied that the fencing work was urgent but did not consider it appropriate to make a contribution order pursuant to s 35 of the ND Act then the appropriate order would have been to dismiss the application. The order made by the learned adjudicator was not one within the scope of s 35. This was an error of law. 
  9. [26]
    For the sake of completeness, I will address the grounds of appeal identified by the applicant.
  10. [27]
    The applicant says that the learned adjudicator erred in accepting the respondents’ evidence regarding the presence of the bamboo along the fence line. The learned adjudicator made no findings on the evidence other than the finding that the dividing fence was sufficient. It is unclear from the reasons whether, in fact, the learned adjudicator accepted the respondents’ evidence.
  11. [28]
    The applicant says that the learned adjudicator erred in failing to find that the fence was damaged as a result of the fallen tree. As I have set out in these reasons, the learned adjudicator erred in law in failing to address whether the fencing work was urgent which required consideration of whether the evidence supported a finding that the fence had been damaged by the falling tree and thereby urgent fencing work was required.
  12. [29]
    The applicant says that the learned adjudicator erred in finding that the fence was a sufficient dividing fence. As I have set out in these reasons, the determination of this issue did not arise unless a finding was made that the fencing work was urgent. 

Conclusion

  1. [30]
    The learned adjudicator erred in law in failing to correctly apply the provisions of the ND Act. The learned adjudicator failed to identify whether the fencing work undertaken by the applicant was urgently required and failed to make necessary findings in this regard. The learned adjudicator erred in law in acting beyond power and purporting to make orders regarding the work to be undertaken by the respondents relating to the bamboo hedge. The learned adjudicator erred in law in failing to provide adequate reasons for the decision.
  2. [31]
    Leave to appeal should be granted and the appeal allowed. In disposing of the appeal, and because the identified errors are errors of law, I am confined by the operation of s 146 of the QCAT Act as to the final orders I can make. The determination of the questions of law does not result in the resolution of the matter entirely in the applicant’s favour. The matter must be remitted for reconsideration.
  3. [32]
    The decision of the learned adjudicator is set aside and the matter remitted to a differently constituted Tribunal for determination according to law and in accordance with these reasons.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(1).

[2]  Ibid, s 142(3)(a)(i).

[3]LN & Anor v LSS & Ors [2020] QCATA 18, citing Amundsen v Queensland College of Teachers [2011] QCATA 2; see also GDLA v GMG [2017] QCATA 18 and Pickering v McArthur [2005] QCA 294.

[4]  Ibid, s 146.

[5]Ericson v Queensland Building Services Authority [2013] QCA 391.

[6]  Ibid, s 147.

[7]  Appeal Book, page 36c

[8]Pickering & Anor v McArthur [2010] QCA 341 at [22] per Chesterman JA.

[9]  ND Act, s 31(7).

[10]  ‘Sufficient dividing fence’ is defined in s 13 of the ND Act.

[11]Res 1 v Medical Board of Queensland [2008] QCA 152.

[12]Minister for Immigration & Citizenship v Li (2013) 249 CLR 332.

[13]  Ibid.

[14]DL v The Queen [2018] HCA 26.

[15]Deveze v Suosaari [2021] QCATA 106; Body Corporate of Tranquility Court v Harrigan [2015] QCATA 136.

[16]  See, eg, Aurisch v Fong & Anor [2020] QCAT 380.

Close

Editorial Notes

  • Published Case Name:

    Lauren Kay George Pty Ltd as trustee for the Lauren Kay George family trust v Nicole Wolf & Anor

  • Shortened Case Name:

    Lauren Kay George Pty Ltd as trustee for the Lauren Kay George family trust v Nicole Wolf

  • MNC:

    [2023] QCATA 78

  • Court:

    QCATA

  • Judge(s):

    A/Deputy President Brown

  • Date:

    26 Jun 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Amundsen v Queensland College of Teachers [2011] QCATA 2
1 citation
Jump To
Cite 1 - [2011] QCATA 2
Aurisch v Fong & Anor [2020] QCAT 380
2 citations
Jump To
Cite 1 - [2020] QCAT 380
Cite 2 - [2020] QCAT 380
Body Corporate of Tranquility Court v Harrigan [2015] QCATA 136
2 citations
Jump To
Cite 1 - [2015] QCATA 136
Cite 2 - [2015] QCATA 136
Deveze v Suosaari [2021] QCATA 106
2 citations
Jump To
Cite 1 - [2021] QCATA 106
Cite 2 - [2021] QCATA 106
DL v The Queen [2018] HCA 26
1 citation
Jump To
Cite 1 - [2018] HCA 26
Ericson v Queensland Building Services Authority [2013] QCA 391
2 citations
Jump To
Cite 1 - [2013] QCA 391
Cite 2 - [2013] QCA 391
GDLA v GMG [2017] QCATA 18
1 citation
Jump To
Cite 1 - [2017] QCATA 18
LN v LSS [2020] QCATA 18
1 citation
Jump To
Cite 1 - [2020] QCATA 18
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Pickering v McArthur [2005] QCA 294
1 citation
Jump To
Cite 1 - [2005] QCA 294
Pickering v McArthur [2010] QCA 341
1 citation
Jump To
Cite 1 - [2010] QCA 341
Res 1 v Medical Board of Queensland [2008] QCA 152
1 citation
Jump To
Cite 1 - [2008] QCA 152

Cases Citing

Case NameFull CitationFrequency
Gabler v Murthi [2023] QCATA 1022 citations
Rigby v Knowles [2024] QCATA 372 citations
1

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