Ishaac v Tyrrell & Tyrrell[2025] QCATA 41

REASONS FOR DECISION

HISTORY

1. [1]
   The appellant filed an application for minor civil dispute – dividing fences,^[1] in the Chinchilla Magistrates Court on 22 April 2022 and served a copy on the respondents.
2. [2]
   The application sought orders that the respondents pay half the cost of the fence constructed on the common boundary.
3. [3]
   The application was heard by the learned Magistrate sitting as a Member of the Tribunal in Chinchilla on 4 May 2022.  The application was dismissed.
4. [4]
   The appellant has provided a chronology which sets out the history of the dispute.

The appellant purchased the property at 11 Short Street, Wandoan in Queensland in August 2020.

In about September 2020, the applicant obtained details of the residential addresses of her neighbours.  She wrote to all three neighbours advising them of her intention to construct a boundary line fence between each of the properties.

On 20 November 2020, the applicant received a reply from the respondents who were the owners of 13 Short Street, Wandoan, advising that they were not willing to pay.

The response was contained in an email dated 20 November 2020 and said:

we received your letter regarding the common boundary between yourself and our house at 13 Short Street.  We understand that you would like to replace the fence with the timber paling fence. Unfortunately, we are just in a very tight financial position at the moment that really doesn't lend itself to any urgent expenses.  Sadly seven years of drought has not been kind to us.  We do regret that we are not in a position to support your request.

The appellant says that she made several verbal requests to the respondents and was “arrogantly shutdown each time I approach them”.

5. [5]
   The appellant says that she was concerned about her neighbour’s tenant’s dogs and broken fencing that was never repaired.
6. [6]
   The appellant proceeded to obtain a survey of the land as she was concerned that the fences were not on the correct boundary and proceeded to construct a fence.  Because the appellant says, she felt in danger she proceeded to construct a fence on the boundary, without agreement with the respondents.
7. [7]
   The appellant states that when she became aware that the respondents were selling their property, she obtained legal advice.  The appellant urgently filed application in Tribunal to recover the respondents share of the fence.
8. [8]
   She states that the application was dismissed but the Member did not “practice procedural fairness in order to give me a chance to fight my case.”  A further application filed by the appellant was dismissed without hearing.
9. [9]
   The appellant filed this appeal.

Appeal

10. [10]
    The appellant filed an application for leave to appeal or appeal on 28 July 2022.  The Notice of Appeal stated the following grounds:

I seek Orders for a fair hearing.

I seek Orders for all Parties to pay equal portions of the cost for correctly marked and erected fencing.

11. [11]
    The application had an attached a document setting out the appellant’s reasons for a review.  The appellant stated that the Member had failed to afford her natural justice or procedural fairness by not allowing her time to consider material provided to the Tribunal on the morning of the hearing.  She states that the Member was stern and dismissive.  The appellant set out concerns about dog incidents in the area.  The appellant noted that the Tribunal failed to consider sections 16, 28 and 35 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).  See below for consideration of these sections as applicable to this appeal.
12. [12]
    The application, on its face, appeared to be out of time.  The appellant filed an application for an extension of time.  On 26 October 2022, the Acting Senior Member of the Tribunal granted the application for extension of time.  The Acting Senior Member noted at paragraph 10 and 11:

as to the merits of the matter, the applicant asserts an error of law through a failure to be afforded natural justice in that her material was misplaced, the respondent’s material was handed to the Magistrate at the hearing on the applicant was not granted an adjournment.  This further submitted that the Magistrate failed to take into account relevant considerations.  I note that the respondents deny the assertions.

I am not able to make any determination at this preliminary stage in relation to the merits of the application for leave to appeal or appeal, however, if the applicant's assertions can be established – there appears to be an arguable case.

Law

13. [13]
    The appellant appeals pursuant to section 142 of the QCAT Act.  Section 142(1) states as follows:

A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding if a judicial member did not constitute the tribunal in the proceeding.

14. [14]
    Section 142(3) states that an appeal under subsection (1) against any of the listed decisions of the Tribunal may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.
15. [15]
    In Allen v Queensland Building and Construction Commission [2023] QCATA 66 at [2], Judicial Member McGill SC summarised the approach to leave in the Appeal Tribunal:

As a general proposition, 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.  An Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the finding, and it is not contrary to compelling interference.  If leave to appeal is granted, the appeal is by way of rehearing so far as it is against a decision on a question of fact, or of mixed fact and law: the QCAT act s 147.  Otherwise it is an appeal which will only correct an error of law: the QCAT Act s 146.

16. [16]
    The principles were also referred to by Senior Member Brown and Member Traves in Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]:^[2]

The relevant principles to be applied in determining whether to grant leave to appeal are well established: is there a reasonably arguable case of error in the primary decision; is there a reasonable prospect that the applicant will obtain substantive relief; is leave necessary to correct a substantial injustice to the applicant caused by some error; is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage.

(citations omitted)

17. [17]
    The enabling Act is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘Dividing Fences Act’).  In particular, section 33 of the Dividing Fences Act gives jurisdiction to QCAT to hear and decide any matter arising under the chapter.  Relevant sections to the appeal are referred to in the discussion section below.
18. [18]
    Section 147(3) of the QCAT Act deals with deciding appeals on a question of fact or mixed law and fact.  It notes in subsection (2) that the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal.  Section 147(3) states:

3. (3)
   In deciding the appeal, the appeal tribunal may—

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

3. (b)
   set aside the decision and substitute its 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.

19. [19]
    In the usual course, leave to appeal will usually only be granted where it is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there was an error to be corrected.^[3]In this case, leave to appeal is required as the matter concerns the proceedings for a minor civil dispute.^[4]  The appeal is on a question of mixed law and fact.^[5]
20. [20]
    When dealing with an application for leave to appeal, the appeal must be decided by way of rehearing.  The Appeal Tribunal may allow additional evidence.  The Appeal Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision, or set aside the decision and return the matter to the Tribunal or other entity for reconsideration.^[6]

The Hearing Before the Tribunal

21. [21]
    The appellant and the respondent appeared in the Chinchilla Magistrates Court sitting as the Tribunal on 4 May 2022.
22. [22]
    The appellant told the Tribunal that erecting the boundary fences was urgent because:

one: the menacing dogs in the area where several times I've had to call the council to remove dogs from the area.  I've had attacks from the dogs.  The tenant had dogs that were very dangerous where I even said to the Council, “if you don't do something about this, the media will be called in on this.”  So they started moving in on the whole dog thing.  Plus, the lack of privacy and their – like their fence – half of it was gone.  It was not classified as a full dividing fence.

23. [23]
    The appellant says that she was not afforded natural justice as material was provided late from the respondents and she was not granted an adjournment to consider it.  The following exchange took place between the appellant and the Tribunal.
24. [24]
    The Member asked the respondent what they wanted to say about the application.  They replied that they had prepared a statement.  He read the statement by the respondents, and then asked the appellant if she had a copy.  The appellant stated “I received it late yesterday afternoon.” The Tribunal then asked the appellant whether she had the opportunity to read it.  The appellant replied, “I have.  And I did respond to them, but they haven't looked at the email”.  The Tribunal then stated:

Alright.  Well, you can tell me what your response is.  All right.  All right.  I read that.  What – what's – I have to say that I probably agree with the with a lot of the submissions that are in there, and the reason for that is that – obviously, you get an opportunity to respond.  The legislation, the Dividing Fences [Act], sets out a procedure that must be followed in relation to these sorts of matters, which does require a notice unless it is – a notice to the other landowner to contribute to the sort of fence that you are proposing to put up, and you propose that, and they get the opportunity to respond to that.  The idea behind the legislation is that you have a month to come to some agreement, and if you can't come to some agreement then you’ve got two months, then, to file an application. 

The Tribunal then went on to say:

In relation to this application, it would appear to me there is no evidence to support that it was an urgent matter.  If the fence has been damaged and destroyed, and there’s an urgent – in the circumstances that you need to put up a fence, then that opens up an opportunity to put the fence up, and then request a contribution, which – but I'm looking at this, and I'm told that it was never served.  So your application is premature in that regard, and [I don't] have any evidence [that it] comes within the urgent fencing requirement in the any event.

The appellant said:

but I did give them two weeks… I did write to them, giving them an opportunity that I wouldn't go ahead with this hearing should payment be made within that two weeks.  I did say two weeks.  And I was advised that the fact that I had written to them, that could be a contribution as well instead of the Form 1 because they did say to me that Form 1 now for me is like a backup from the letter.

25. [25]
    The following exchange then took place between the appellant and the member:

26. The Hearing on Appeal

26. [26]
    In the hearing before me, the appellant said she was not at the time aware of the Dividing Fences Act.  However, she did send a letter in November 2020, advising her neighbours that she intended to construct a fence, albeit a timber fence.
27. [27]
    The fence was completed in August 2021.  Her email was sent to the respondents asking them to pay their share of the fence on 21 April 2022.  The application was filed in the Tribunal in May 2022.  This was approximately seven to eight months after the completion of the fence.
28. [28]
    The fence was a Colorbond fence which the appellant says is usual for the area and that about 50% of the houses in the area have Colorbond fences.  She said that she built the fence because she was concerned for her personal security.  She was worried about issues pertaining to domestic violence as a single person living in the dwelling.  She had security cameras installed for her protection.  She was also concerned about the dogs in the area which had attacked and killed an animal.  She said that the fence that was in existence between the properties could not be regarded as a fence at all and would not keep animals from moving through it.
29. [29]
    The appellant admitted that she did not give a notice pursuant to sections 31 or 32 of the Dividing Fences Act at any time.  She gave evidence that at no time did she communicate with or obtain consent from the respondents to carry out a survey on the land.  She engaged surveyors and undertook the survey on her own.  Whilst she gave evidence that the survey showed that the boundaries were not in the right place, there is no evidence before the Tribunal either at first instance or on appeal as to how significant that was.  In any event, the respondents do not take issue that the fence erected by the appellant is on the correct boundary and that any discrepancy would have been centimetres rather than anything significant.
30. [30]
    The respondents have provided a number of statements in response to the appellant’s application.  In summary, they state that:

    1. the respondents were not given an opportunity to have any input into the fence or its construction;
    2. replacement of the fence was not necessary and was not urgent;
    3. the procedural requirements of the Dividing Fences Act has not been complied with;
    4. a notice to contribute has never been served;
    5. the costs of the completed fence have not been proven;
    6. the results of any survey have not been disclosed; and
    7. the method of calculation of contribution has not been disclosed.
31. [31]
    The respondents admitted that they received the email from the appellant in November 2020.  The first respondent had some conversations with the appellant during which he said he would not contribute to any new fence as the fence that was in situ was adequate.

Discussion and Decision

Was the Appellant Afforded Procedural Fairness?

32. [32]
    Whilst the Tribunal did not engage with the appellant to the extent that the appellant may have wished, it is clear that the Tribunal took into account the material that had been filed.  Instead, the Tribunal focused on the issues of whether the appellant had complied with her obligations under the Dividing Fences Act.  Having come to the inescapable conclusion that the appellant had not complied with the requirements of that Act, the Tribunal had no choice but to dismiss the application.
33. [33]
    The Tribunal ensured that the respondents’ material had been received by the appellant and indeed she had had an opportunity to respond to it by email.  No application for an adjournment appears to have been made on the face of the transcript.
34. [34]
    In my view, it could not be said that the appellant had suffered a substantial injustice as a result.

Was the Member Correct in Dismissing the Claim?

35. [35]
    The objects of the Dividing Fences Act are set out in section 3 of the Act which states that the objects of the Act are:

3. (a)
   to provide rules about each neighbour’s responsibility for dividing fences… so that neighbours are generally able to resolve issues about fences or trees without a dispute arising; and

3. (b)
   to facilitate the resolution of any disputes about dividing fences or trees that do arise between neighbours.

36. [36]
    Section 7(1) states that a sufficient dividing fence is required between two parcels of land if an adjoining owner requests a dividing fence.  Subsection (2) states:

3. (2)
   Generally, neighbours must—

3. (a)
   contribute equally to the building and maintaining of a sufficient dividing fence; and

3. (b)
   not attach something to a dividing fence that materially and unreasonably alters or damages it.

37. [37]
    For the purposes of this application, it is useful to note section 28 of the Dividing Fences Act defines urgent fencing work as:

3. (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.

3. (2)
   If it is impractical 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.

38. Section 30 states:

3. (1)
   Adjoining owners are encouraged to attempt to resolve issues about fencing work to avoid a dispute arising.

3. (2)
   If an owner wants an adjoining owner to contribute to fencing work, the owner must give the adjoining owner notice to contribute under division two.

38. [38]
    A note to that subsection says: other than for urgent work or with leave from QCAT, the notice must be given and adjoining owners must agree before the fencing work is done.
39. [39]
    It is plain that the appellant never gave a section 30 notice in the form required, as set out in division 2 section 31, setting out details of the land, the type of fence, and the estimated costs before the fence was constructed.
40. [40]
    At the hearing, the appellant said that the work was urgent and therefore section 32 of the Dividing Fences Act applied.
41. [41]
    Section 32 provides for notice to contribute for urgent fencing work.  It states that if an owner carries out fencing work under section 28 in (see above) the owner may require the adjoining owner to contribute to any reasonable cost incurred for the fencing work by giving a notice to the adjoining owner.  Again, the notice must be in the approved form.  No such notice was ever given by the appellant to the respondents.  Section 32(6) states:

If, within one 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 two months after the notice is given applied to QCAT for an order under section 35.

42. [42]
    Obviously, in this case, those timeframes were not complied with because no notice was given.
43. [43]
    Part 5 section 38 sets out the process for dealing with unauthorised construction or demolition.  The section is relevant insofar as unauthorised construction is informed by section 17 of the Dividing Fences Act, which defines ‘authorisation’ as:

3. Authorisation, for a dividing fence, means—

3. (a)
   the adjoining owners have agreed under this chapter about fencing work to be carried out for a dividing fence; or

3. (b)
   QCAT has ordered that fencing work be carried out for the dividing fence.

44. [44]
    Section 40 of the Dividing Fences Act provides for parties to agree to the common boundary being defined by a cadastral surveyor engaged by a party or parties.  This section was not complied with by the appellant.  Indeed, the appellant did not notify the respondents that she intended to conduct a survey to define the common boundaries, although the appellant seeks recovery of the cost of such survey in the amount claimed from the respondents in respect of the construction of the fence and the conduct of the survey.
45. [45]
    There was no new evidence before me other than an affidavit by the appellant's witness Blair Brewster.  Mr Brewster was available to give evidence but did not give evidence as the respondents did not wish to cross-examine him on the affidavit.
46. [46]
    The respondents accept that Mr Brewster attended at the premises and was present when a conversation took place between the appellant and Mr Tyrrell when Mr Tyrrell confirmed he would not contribute to the cost of the fence.  The respondents say that the fence that was in situ was a suitable fence having regard to the area.  They contend that a Colorbond fence was unusual for the area and cannot be regarded as being at all common or reasonable in the circumstances.
47. [47]
    The respondents admitted that the fence was overgrown in some places and was rusty but was otherwise perfectly sound and capable of keeping animals on one side of the fence.  The photos which were provided were not clear enough to make an informed conclusion as to the fence’s unsuitability.  I accept the evidence of the respondents that the fence was not unsuitable.
48. [48]
    It is clear that the appellant has not complied with the provisions of the Diving Fences Act which preclude her from recovering monies for the construction of the fence from the respondents.  In the circumstances, there does not appear to be any error of law or fact on the part of the Tribunal and the Tribunal’s order to dismiss the appellant’s application was appropriate in all the circumstances.  For the reasons stated above, there was no failure by the Tribunal to afford the appellant procedural fairness.  For the reasons stated above, there was no urgency within the meaning of the Dividing Fences Act.
49. [49]
    Accordingly, the appeal is dismissed.