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Gordon v Body Corporate for The Observatory on Buderim CTS 51627[2025] QCATA 74

Gordon v Body Corporate for The Observatory on Buderim CTS 51627[2025] QCATA 74

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gordon v Body Corporate for The Observatory on Buderim CTS 51627 [2025] QCATA 74

PARTIES:

Katherine Gordon

(appellant)

v

Body Corporate for The Observatory on Buderim CTS 51627

(respondent)

APPLICATION NO/S:

APL254-24

ORIGINATING APPLICATION NO/S:

Q1/24

MATTER TYPE:

Appeals

DELIVERED ON:

18 August 2025

HEARING DATE:

30 April 2025

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The decision of the Tribunal dated 24 July 2024 is set aside.
  4. The matter is returned to a differently constituted Tribunal for reconsideration.
  5. Pursuant to s 67 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the parties are directed to attend a compulsory conference to be heard by a Member of the Tribunal, at a date, time, and place to be advised, before reconsideration of the matter occurs.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – dividing fence dispute between neighbours, one of which was a body corporate of a community titles scheme – where Tribunal made orders for construction of dividing fence – where Tribunal also ordered removal of encroachment across common boundary from neighbour’s land – encroachment included structural post supporting a timber deck  – whether Tribunal had power to order removal of encroachment under the Property Law Act 1974 (Qld) or Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) –  where Tribunal ordered applicant to pay half of survey costs  –  whether Tribunal erred in ordering contribution to survey costs  –  whether necessary to decide that question

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 16, s 26, s 33, s 35, s 40

Property Law Act 1974 (Qld), s 184

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 75, s 142, s 143, s 146

Berry v Treasure & Anor [2021] QCATA 61

Ex parte Van Achterberg [1984] 1 Qd R 160

MacDonald & Anor v Clark & Anor [2012] QSC 418

Saxer v Hume [2022] QCATA 25

Saviane v Hope Island Resort Principal Body Corporate & Anor [2014] QCATA 355

Seaview Park v Furness [2022] QCATA 177

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

  1. [1]
    By an Application for leave to appeal or appeal filed on 19 August 2024 (‘the Appeal Application’), the Applicant (‘Ms Gordon’) seeks leave to appeal, and to appeal, a decision of the Tribunal made (by an Adjudicator) on 24 July 2024 (‘the Decision’).[1] The Decision was made in a proceeding commenced by the Respondent to this proceeding (‘the Body Corporate’) against Ms Gordon by Application for minor civil dispute – dividing fences filed on 9 January 2024 (‘the MCD Application’).
  2. [2]
    By the Decision, the Adjudicator made the following orders:
    1. A new dividing fence is to be constructed along the defined common boundary as defined by the survey report of RPS surveyors.
    2. The new fence is to be constructed along the entire length of the common boundary.
    3. [The Body Corporate] must pay the entire cost of the construction of the new fence.
    4. The fence must be built to a height of 1.8 metres and be constructed of hardwood posts and rails and treated pine palings.
    5. The new fence is to be constructed within 120 days of this order.
    6. [Ms Gordon] within 60 days of this order, at her expense remove those items of hers which encroach upon the [Body Corporate’s] land.
    7. [Ms Gordon] must pay $2,612.50 being one half of the survey cost within 21 days of this order to the [Body Corporate].
    8. Within 60 days of this order both parties must clear all vegetation on the respective sides of the common boundary line to allow access to the contractor to carry out the building construction to a width of 1 metre.
    9. Both parties must provide full access to the contractor to enable the construction of the fence.
    10. The contractor is to be given a copy of this order. Before construction the contractor is to provide particulars of its license public liability cover.
    11. There is no order as to costs.
  3. [3]
    Ms Gordon challenges Orders 6 and 7 of the Decision.

Leave to appeal is required

  1. [4]
    An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.[2]
  2. [5]
    As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC in Saxer v Hume:[3]

… 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. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.

(citations omitted)

  1. [6]
    Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:[4]

There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis:

The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave.

(citation omitted)

Challenge to Order 6

Grounds of appeal

  1. [7]
    The Appeal Application sets out the following grounds for appeal in relation to Order 6:
    1. ‘Ms Gordon was not afforded procedural fairness in relation to the encroachment complaint.’
    2. ‘Ms Gordon was not notified of any encroachments by RPS as per s 18 of the Survey and Mapping Infrastructure (SMI) Regulation 2014. IS324276 references a notification of encroachments being issued on the 28/03/2018. However, in the survey SP282570 (May 2018) there were no encroachments identified, which evidences that all the encroachments identified in March 2018 (in survey IS279798) and notified on 28/03/2018, had been fully remediated.’
    3. ‘The discrepancies and lack of notification under the SMI Regulation 2014 from the survey IS324276 has been discussed with the Surveyors Board Queensland and they have considered the matter has enough merit to warrant review by the Board in relation to possible non-adherence to the Surveyors Act 2003.’
    4. ‘The “screen” is not marked as an encroachment on IS324276.’
    5. ‘The Body Corporate is non-compliant with its Development Approval conditions. If the Body Corporate had been in compliance with their DA conditions relating to fencing, the accidental incorrect positioning of the ‘timber support post’ would not have occurred.’
    6. ‘The Property Law Act 1974 provides the legal framework for resolution of encroachments and the adjudicator has no power to make an order under the Property Law Act 1974.’
    7. ‘Under the Neighbourhood Disputes (Dividing Fences and Trees) Act, (section 35), the adjudicator has no power to make an order to remedy an encroachment.’

Adjudicator’s findings in relation to the encroachments

  1. [8]
    The critical finding made by the Adjudicator in this context is as follows:[5]

The survey clearly shows that there are encroachments by [Ms Gordon] which must be removed, being a structural post and a screen which must be removed to allow construction of the new fence.

  1. [9]
    While Ms Gordon questions the adequacy of the surveying evidence and whether the privacy screen attached to the deck was encroaching,[6] Ms Gordon appears to accept that such evidence indicated that the timber support post (and the edge of the timber deck) encroached on to the common property of the Body Corporate.

Preliminary observations

  1. [10]
    By Order 6 by which the Adjudicator ordered the removal, at Ms Gordon’s expense, of ‘those items of hers which encroach upon the [Respondent’s] land’.
  2. [11]
    Notwithstanding Ms Gordon’s focus on Order 6, I consider that the challenge to this Order also impacts Order 2.[7] Order 2 required the new fence to be constructed along ‘the entire length’ of the common boundary. It necessarily follows that if Order 6 were set aside, the Respondent could not comply with Order 2 insofar as the encroachments impede construction of the fence along the section of the common boundary that is affected by the encroachments.
  3. [12]
    In my view, Ms Gordon’s submissions concerning the grounds for appeal in respect of Order 6 raise two primary questions, each being a question of law:
    1. Does an Adjudicator have power to make orders in relation to encroachments on land under the Property Law Act 1974 (Qld) (‘the PLA’)?
    2. Does the Tribunal have power to make orders in relation to encroachments on land in the exercise of its jurisdiction under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the NDA’) (in relation to dividing fences)?

Does an Adjudicator have power to make orders in relation to encroachments under the PLA?

  1. [13]
    At the date of the Decision, Part 11, Division 1 of the Property Law Act 1974 (Qld) (‘the PLA’)[8] provided that an adjacent owner or an encroaching owner may apply to the court for relief under this division in respect of any encroachment.[9]
  2. [14]
    In my view, the timber support post (supporting the deck) and the affixed privacy screen (assuming it also encroaches) constitute an ‘encroachment’ for the purposes of the PLA.
  3. [15]
    In Ex parte Van Achterberg,[10] it was said by Carter J:[11]

… the intention of the legislature is … to deal with an encroachment which is man-made with the building materials of the day, which is of a substantial and lasting character, which is brought into existence for domestic or industrial purposes and which is of such a kind that the legal rights of those affected by it may best be adjusted by permitting it to remain in place rather than by ordering its removal on the ground that it is merely a trespassing encroachment upon the land of another.

  1. [16]
    In that case, it was found that found that a fence and its foundation was an encroachment. In MacDonald & Anor v Clark & Anor (‘MacDonald’),[12] a wooden fence, patio improvements, a shade sail and supporting post, and a split-system air-conditioner motor were found to constitute encroachments.
  2. [17]
    I consider the encroachments as found by the Adjudicator below have a substantial and lasting character and constitute an encroachment.
  3. [18]
    I accept Ms Gordon’s submission that the Tribunal has no jurisdiction to make orders about encroachments under the PLA. An application may be made to the ‘court’ under s 184 and orders may be made by the ‘court’ under s 185. The term ‘court’ was defined to mean (other than for Part 19) the Supreme Court.
  4. [19]
    The next issue is whether an Adjudicator has power under the NDA to make an order in the substantive terms of Order 6.

Power to order removal of an encroachment under the NDA?

  1. [20]
    In considering this question, I consider that there is an anterior issue of whether the Supreme Court has exclusive jurisdiction to make any order in relation to removal of an encroachment.  Although it appears that this issue is not finally settled, I am satisfied that if the Tribunal has jurisdiction under an enabling Act to decide a dispute before it, the Tribunal may make an order in relation to an encroachment if the Tribunal has power to do so under that piece of legislation.[13]
  2. [21]
    Is such a power available in deciding a fencing dispute under the NDA?
  3. [22]
    There are a range of orders that may be made under the NDA which may require an adjoining owner to do certain things, including some that may occur on the adjoining owner’s property. The various orders provide for:
    1. removal of the whole or part of an existing dividing fence: s 16(a), s 33(2), s 35(1)(b);
    2. preparation of land, including the trimming, lopping or removal of vegetation, along or on either side of the common boundary of adjoining lands for a purpose mentioned in s 16(a): s 16(b), s 35(1)(b);
    3. removal of a fence other than a dividing fence on adjoining land, if this is necessary to allow fencing work for a dividing fence (and an order may be made for payment of compensation for its removal): s 33(3); see also s 35(1)(j);
    4. restoration of a dividing fence to a reasonable standard in the event of damage to, or destruction of, the dividing fence by a negligent or deliberate act or omission of an owner of land (or a person who has entered the owner’s land with the express consent of the owner): s 26(2), s 35(1)(d);
    5. removal of a thing attached to a dividing fence without consent, and restoration of the dividing fence to a reasonable standard: s 27(2), s 35(1)(j);
    6. carrying out fencing work on a line that is not the common boundary of the adjoining land: s 35(1)(a), s 35(1)(b) (see also s 12(2));
    7. carrying out any other work that is necessary to carry out the fencing work ordered under s 35, including work for a retaining wall: s 35(1)(f);
    8. removal of a dividing fence which is constructed without authorisation: s 39(1).
  4. [23]
    Whilst these powers are broad, none provides, in express terms, for the removal of an encroachment. The question that arises is whether any of those provisions is sufficiently broad to empower the Tribunal to order the removal of an encroachment across the common boundary. Having regard to the terms of the various orders identified above, I consider that the only provision which may arguably provide such power is s 35(1)(f) (which provides for an order for ‘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’).
  5. [24]
    For the following reasons, it is my view that upon the proper construction of  s 35(1)(f) in particular, and the provisions of the NDA referable to dividing fence disputes as a whole, s 35(1)(f) does not provide power for removal of an encroachment (save, arguably, for an encroachment comprising a fence that crosses from one property to the adjoining property).
  6. [25]
    First, s 35(1)(f) makes no reference to the removal of anything, in contrast to other provisions providing for the removal of the whole or part of a dividing fence, removal of vegetation, removal of a thing attached to a dividing fence, removal of a fence (other than a dividing fence) on adjoining land, and removal of an unauthorised dividing fence. Given the various express references to removal of the respective items, I consider it unlikely that Parliament intended that the phrase ‘work to be carried out’ in s 35(1)(f) would include removal of anything, much less a structure comprising an encroachment across the common boundary. It may be arguable that the power in s 33(3) of the NDA to order removal of a fence (other than a dividing fence) on adjoining land may extend to removal of such a fence that crosses the common boundary, however, I consider it unnecessary to decide the point given the facts of the present case.
  7. [26]
    Second, to construe s 35(1)(f) as encompassing orders for the removal of encroachments would necessarily include significant encroachments such as a garage or even the wall of a house. A dispute about the removal of an encroachment as part of a dividing fence dispute does not sit comfortably with the intent of Chapter 2 to encourage neighbours to attempt to resolve a ‘dividing fence issue’ (which is not defined) informally, and for the Tribunal to resolve the dispute if the neighbours cannot do so. In this context, I note that the definition of ‘fence’ excludes a retaining wall and also a wall that is part of a house, garage or other building (s 11(2)).
  8. [27]
    Third, I consider that it would be anomalous to construe s 35(1)(f) as permitting removal of an encroachment in circumstances where no ancillary order is available under the NDA to adjust the rights the parties, in contrast to the suite of powers under the PLA. I also note that s 35(1)(k) provides for the making of an order for payment of an amount of compensation to an adjoining owner for the removal of a fence under s 33(3).
  9. [28]
    It follows, in my respectful view, that the Adjudicator had no power to make an order in terms of Order 6. A corollary of this is that Orders 2 and 5 cannot stand in the terms made.
  10. [29]
    Before considering what orders should be made, it is necessary to address one argument raised by Ms Gordon which, in my view, is at odds with her primary case. Ms Gordon has contended (seemingly in the alternative) that the timber support post and the privacy screen ‘arguably’ acted as a dividing fence having regard to section 11 of the NDA, and did not constitute an encroachment.[14] As I understand the argument, it is that the privacy screen acts as a dividing fence and the timber post acts as a foundation or support built solely for the support and maintenance of the fence (as contemplated by s 11(1)(c) of the NDA). This raises a question of fact. Having regard to the Body Corporate’s submissions,[15] I find that it is not reasonably arguable that the elevated privacy screen which rests on the deck constitutes a ‘fence’ for the purpose of s 11 of the NDA, much less a dividing fence.

Conclusion

  1. [30]
    As addressed above, I am of the view that:
    1. the Tribunal has no jurisdiction to make orders about encroachments under the PLA;
    2. the Tribunal had no power to order removal of the encroachments identified by the Adjudicator (and, more broadly, the Tribunal has no power to order removal of encroachments under the fencing dispute provisions of the NDA, with the possible exception of a fence (not being a dividing fence) that crosses the common boundary of adjoining land).
  2. [31]
    These questions raised by Ms Gordon involve, in my view, pure questions of law and fall within the compass of s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Consequently, the determination of this aspect of the Appeal Application does not entail any re-hearing of the matter, whether on the evidence below or on fresh evidence.[16]
  3. [32]
    I consider that the determination of the questions of law are not capable of resolving the matter as a whole and the Appeal Tribunal may not substitute its own decision. In my view, Orders 2, 5 and 6 cannot be excised from the balance of the orders made. Factual questions that arise include identification of that part of the common boundary to be excluded from any order requiring the construction of a dividing fence on the boundary (that is, the section of the common boundary impacted by the encroachments), and whether any order should be made that an additional section of fencing not on the common boundary be carried out adjacent to the encroachments).
  4. [33]
    For the above reasons:
    1. I am satisfied that 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 and, in any event, 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;
    2. leave to appeal should be granted;
    3. I allow the appeal;
    4. pursuant to s 146 of the QCAT Act, the decision of the Tribunal should be set aside and the matter returned to the Tribunal for reconsideration and I consider that, given the various factual matters in dispute, it is preferable that it be determined by a differently constituted Tribunal.
  5. [34]
    Given the conclusion I have reached, I do not consider it necessary to address the balance of Ms Gordon’s arguments in relation to Order 6.

Challenge to Order 7

  1. [35]
    Given that the matter is to be returned to the Tribunal for reconsideration, the question of payment of the survey costs (the subject of Order 7) will also fall for reconsideration.

Compulsory Conference

  1. [36]
    Whilst the parties have, to date, been unable to resolve the dispute between themselves, I consider that the prospect of a resolution would be aided if the matter were to attend a compulsory conference to be heard by a Member of the Tribunal. One of the purposes of a compulsory conference is to promote a settlement of the dispute the subject of the proceeding. To that end, pursuant to s 67 of the QCAT Act,[17] the parties are directed to attend a compulsory conference to be heard by a Member of the Tribunal, at a date, time, and place to be advised, before reconsideration of the matter occurs.

Orders

  1. [37]
    For the above reasons, I make the following orders:
  1. 1.
    Leave to appeal is granted.
  1. 2.
    The appeal is allowed.
  1. 3.
    The decision of the Tribunal dated 24 July 2024 is set aside.
  1. 4.
    The matter is returned to a differently constituted Tribunal for reconsideration.
  1. 5.
    Pursuant to s 67 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the parties are directed to attend a compulsory conference to be heard by a Member of the Tribunal, at a date, time, and place to be advised, before reconsideration of the matter occurs.

Footnotes

[1]  The Appeal Application was filed within the requisite 28 day period: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) s 143(4), (5).

[2]  The QCAT Act s 142(3)(a)(i).

[3]  [2022] QCATA 25, [2].

[4]  [2021] QCATA 61, [14].

[5]  Reasons [7].

[6]  Ms Gordon’s submissions filed 10 October 2024, pp 5–6.

[7]  And, by extension, Order 1.

[8]  The Property Law Act 2023 (Qld), which replaced the 1974 Act, commenced on 1 August 2025.

[9]  PLA s 184.

[10]  [1984] 1 Qd R 160.

[11]  Ibid 162.

[12]  [2012] QSC 418 (Martin J as his Honour then was).

[13]  See Saviane v Hope Island Resort Principal Body Corporate & Anor [2014] QCATA 355, [106]–[117]; Seaview Park v Furness [2022] QCATA 177, [18]–[19]. Cf MacDonald, [45]–[46], although I note that Martin J’s observations were made in the context that the relevant provision of the Body Corporate and Community Management Act 1997 (Qld) provided that the adjudicator did not have power to resolve a question about title to land, and the plaintiffs wanted the defendants to convey the area of encroachment to them.

[14]  Ms Gordon’s submissions filed on 10 October 2024 (Exhibit 2), p 6, subparagraph (c).

[15]  Body Corporate’s submissions filed 8 November 2024 (Exhibit 8), pp 4–5.

[16] Ericson v Queensland Building Services Authority [2013] QCA 391, [13], [25]; Ericson v Queensland Building and Construction Commission [2014] QCA 297, [13]–[16].

[17]  I consider that this order could also be made pursuant to s 146(c)(ii) of the QCAT Act.

Close

Editorial Notes

  • Published Case Name:

    Gordon v Body Corporate for The Observatory on Buderim CTS 51627

  • Shortened Case Name:

    Gordon v Body Corporate for The Observatory on Buderim CTS 51627

  • MNC:

    [2025] QCATA 74

  • Court:

    QCATA

  • Judge(s):

    Member Lumb

  • Date:

    18 Aug 2025

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
Berry v Treasure [2021] QCATA 61
2 citations
Jump To
Cite 1 - [2021] QCATA 61
Cite 2 - [2021] QCATA 61
Ericson v Queensland Building and Construction Commission [2014] QCA 297
1 citation
Jump To
Cite 1 - [2014] QCA 297
Ericson v Queensland Building Services Authority [2013] QCA 391
1 citation
Jump To
Cite 1 - [2013] QCA 391
Ex parte Van Achterberg [1984] 1 Qd R 160
2 citations
Jump To
Cite 1 - [1984] 1 Qd R 160
Cite 2 - [1984] 1 Qd R 160
MacDonald v Clark [2012] QSC 418
2 citations
Jump To
Cite 1 - [2012] QSC 418
Cite 2 - [2012] QSC 418
Saviane v Hope Island Resort Principal Body Corporate & Anor [2014] QCATA 355
2 citations
Jump To
Cite 1 - [2014] QCATA 355
Cite 2 - [2014] QCATA 355
Saxer v Hume [2022] QCATA 25
2 citations
Jump To
Cite 1 - [2022] QCATA 25
Cite 2 - [2022] QCATA 25
Seaview Park v Furness [2022] QCATA 177
2 citations
Jump To
Cite 1 - [2022] QCATA 177
Cite 2 - [2022] QCATA 177

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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