Elis v Slade [2026] QCATA 7

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ellis v Slade [2026] QCATA 7 PARTIES: WESLEY NOEL ELLIS (applicant/appellant) SHERYL JOY ELLIS (applicant/appellant) v PAULA DENISE SLADE (respondent) KEVIN JAMES SLADE (respondent) APPLICATION NO/S: APL092-23 ORIGINATING APPLICATION NO/S: MCDQ16/22 (Maryborough) MATTER TYPE: Appeals DELIVERED ON: 12 February 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member Rinaudo AM ORDERS: IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT: The Application for miscellaneous matters filed 18 July 2023 is refused. The application for leave to appeal or appeal is dismissed. The stay of the decision made 8 February 2023 in proceeding MCDQ16/22 (Maryborough) is lifted. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where appellants asserted magistrate lacked jurisdiction, took irrelevant considerations into account and did not consider relevant considerations – dividing fence dispute – where dam battens and retaining wall constructed close to boundary line – where fence judged an insufficient fence – where fence encroaching on boundary line – whether magistrate had jurisdiction to order replacement of fence Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 13, s 35, s 36 -- 1 of 7 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 146, s 147 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Cachia v Grech [2009] NSWCA 232 Devries v Australian National Railways Commission (1993) 177 CLR 472 Ericson v Queensland Building Services Authority [2013] QCA 391 Forostenko & Donnelly v Lloyd [2015] QCATA 154 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Ramsay v Earl [2025] QCATA 29 Teitzel v Houston [2018] QCATA 64 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] This is an appeal of a decision in a minor civil dispute – dividing fences matter heard and decided on 8 February 2023. [2] Mr and Mrs Slade sought the replacement of the fence on the common boundary between their property and the property of Mr and Mrs Ellis. [3] The magistrate who heard the matter ordered that within 90 days (a) the pre-existing fence between the subject properties be removed and Mr and Mrs Ellis pay the costs of removal of the fence and materials; (b) Mr and Mrs Ellis remove the dam wall batter from the common boundary so that the toe of the batter was at least 1.5m from the common boundary, and construct a retaining wall to keep the batter off the boundary to allow for the building of a new fence; and (c) a split post, galvanised picket and dog wire fence be constructed on the common boundary, with the costs of this construction to be borne equally by the parties. [4] The magistrate made this decision on the basis that (a) from the Slades’ side the fence had an unacceptable, unsightly appearance; (b) the fence was constructed of rusting second-hand pieces of corrugated iron, inappropriate for the area; -- 2 of 7 -- 3 (c) the fence posts were not level; (d) (this being the determinative issue for the fence’s removal) significant portions of the fence did not follow the common boundary line. The fence in places meandered onto the Slades’ property; (e) the evidence on file did not show a retaining wall should be constructed on the common boundary; rather, this should be confined to the Ellis property. Even if there was evidence a retaining wall was necessary, given the quality of the current fence built by Mr Ellis it would be inappropriate to allow Mr Ellis to construct that retaining wall on the common boundary; (f) on the balance of probabilities (the civil standard advanced in Briginshaw v Briginshaw (1938) 60 CLR 336) the evidence of the Slades was more compelling than that of Mr and Mrs Ellis, being unchallenged expert evidence. Appeal proceeding [5] Mr and Mrs Ellis, the appellants, filed an application for leave to appeal or appeal in the Tribunal on 6 March 2023, along with an application to stay the decision. Due to mistakes in filling out the forms amended versions of both applications were filed on 20 June 2023. The amended appeal also particularises the alleged grounds. [6] The Tribunal granted the application to stay the decision in MCDQ16/22 on 25 July 2023, pending the determination of this appeal. [7] On 18 July 2023 the appellants filed an Application for miscellaneous matters, seeking to rely on fresh evidence in the appeal proceeding. That application falls to be determined alongside the appeal. [8] The appellants seek orders certifying the extant fence is adequate, the appellants will repair the rust on the fence and paint it on the respondents’ side, the dam batter will extend 300mm into their property, and they will continue the existing fence along the property line, leaving only a pre-existing kangaroo corridor. Appeals in the Appeal Tribunal [9] An appeal is not a rehearing and is not an opportunity to tender further evidence in an attempt to further argue the original dispute. It is an application concerning a legal or factual error made by a decision-maker.1 [10] A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding.2 Leave is required if the appeal involves a question of fact or mixed law and fact.3 The principles to be applied in considering whether leave to appeal should be granted are: (a) Is there a reasonably arguable case of error in the primary decision?4 (b) Is there a reasonable prospect that the applicant will obtain substantive relief?5 1 Ramsay v Earl [2025] QCATA 29 [19]. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(1) (‘QCAT Act’). 3 Ibid s 142(3)(b). 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Cachia v Grech [2009] NSWCA 232 [13]. -- 3 of 7 -- 4 (c) Is leave necessary to correct a substantial injustice to the applicant caused by some error?6 (d) 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?7 [11] If leave to appeal is granted, in deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the Tribunal for reconsideration.8 The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant’s favour.9 An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.10 The Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.11 [12] In their amended application the appellants assert one ground per order: (a) Regarding the fence removal, the magistrate took irrelevant considerations into account; (b) Regarding the positioning of the dam wall batter, the magistrate lacked jurisdiction to make this order; (c) Regarding the split-post dog wire fence construction, this is an insufficient dividing fence as it does not provide sufficient privacy. [13] Of these the first two are assertions of errors of law.12 The third is an assertion of a mistake of fact which requires leave to appeal. Appellants’ submissions Irrelevant considerations [14] The appellants assert both that the magistrate took irrelevant considerations into account and did not take relevant considerations into account, which are separate grounds. [15] In ordering the fence be removed the magistrate took the following irrelevant factors into account: the colours of the fence on the Slades’ side, rust on the fence, the statement of Mr and Mrs Ellis that the fence would be constructed 50mm on their side of the boundary, and the fact that in some parts the fence encroached on the Slades’ property. [16] The magistrate did not take into account the reasons the extant fence was a sufficient dividing fence. The fence is in good condition and any rust can be removed; it can be painted on the Slades’ side; and it is largely on the Ellis’ boundary and the 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580. 8 QCAT Act s 146. 9 Ericson v Queensland Building Services Authority [2013] QCA 391. 10 QCAT Act s 147(2). 11 QCAT Act s 147(3). 12 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. -- 4 of 7 -- 5 misplacement of some posts is ‘insignificant’. Further the magistrate ‘did not allow’ the appellants to advise him they had an earthmoving business and could remove the fence at no cost. Lack of jurisdiction [17] The appellants submit the magistrate lacked jurisdiction to order the toe of the dam wall batter be at least 1.5m from the boundary as there was no fence present. They assert that to bring the batter back 1.5m, rather than the 300mm required by the local council, would compromise the structural integrity of the dam wall. [18] The magistrate failed to consider that after a site visit by council in 2020 Mr Slade excavated a 1.4m vertical cut on the boundary along the wall. Further evidence sought [19] In their application to rely on further evidence the appellants provide evidence that: (a) The total cost of the original fence was $8,948; (b) The Slades were aware in 2020 the Ellises were incurring that cost; (c) Previously [presumably meaning prior to the making of the order below] all the Ellises had to do was realign the posts, not demolish the entire fence; (d) The Ellises have an owner-builder permit and excavator equipment and can remove the fence without incurring any costs; (e) The local council requires a batter of 300mm. [20] The Ellises were previously directed to justify their filing of additional information by submissions about why it was unavailable to the Tribunal below (noting it might have been adduced at any time during the proceedings), why it is important, and why it should be accepted. These questions are unaddressed. [21] Much of the evidence in question is already on file, except the owner-builder permit and evidence of their qualification to carry out building work. By providing these submissions the Ellises are in effect seeking to re-argue their case. [22] The magistrate addressed the reason he did not allow the Ellises to carry out the replacement of the fence, being that Mr Ellis had constructed the extant fence and the magistrate did not find it to be of satisfactory quality. Submission of the owner-builder permit has no effect on this decision. [23] The Application for miscellaneous matters is refused. Submissions of 4 August 2023 [24] In further submissions the appellants reiterate their position on appeal and assert the maximum deviation from the boundary is 83mm on some of the posts, which is ‘insignificant’ considering the tin portion is on their side of the boundary. They assert a conversation with a surveyor proves the palings and battens are all on their side of the boundary. They cite the issue of personal encroachment (i.e. Mrs Slade entering their property) as one factor in the magistrate’s decision. They offer alternatives to the orders made. -- 5 of 7 -- 6 Respondents’ submissions [25] Concerning the magistrate’s ‘irrelevant considerations’ the respondents submit: (a) Considerations of the fence’s colour and rust are reasonable. These form part of the circumstances of the application, which can include considerations about an existing fence and/or the kind of fence normally used in the area (considerations at s 36(a) and (c) of Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’)); (b) Considerations about the fence’s location may reasonably be considered as falling under s 36(a). [26] They submit these considerations were relevant as the decision-maker may consider all the circumstances of the application as a whole (citing s 36). [27] As to the lack of jurisdiction to make an order about the batter’s location, the respondents submit this is clearly within jurisdiction pursuant to s 35 of the Act. The appellants have provided no evidence to support their assertion that to bring the batter back 1.5m would compromise the dam wall’s integrity. [28] On the objection to the type of fence to be constructed the respondents reiterate their submissions above. Consideration [29] I find the points made by the respondents compelling. [30] Photographic evidence of the fence is on file. Rust is evident, as well as the mismatched colours of the battens. Copies of boundary surveys undertaken in 2021 and 2022 are on file, attached to a statement by Philip O’Donoghue, surveyor. Those surveys show a number of fenceposts on the Slades’ side of the boundary. There is evidence of other fences in the neighbourhood being dog wire fences. [31] There is no evidence the magistrate hearing the matter failed to consider any evidence or submissions on file. It is not an appellable error to prefer one version of the facts to another or to weigh a party’s submissions with more or less weight than the party thinks it ought to receive. If a factual finding has rational support on the evidence, even if another rational view is available this is not a ground for appeal. A decision cannot be called erroneous simply because one rational explanation has been preferred to another.13 [32] It was open to the magistrate to find the fence needed to be removed and replaced. [33] The magistrate did not lack jurisdiction to order the dam batter be positioned 1.5m from the boundary line. Jurisdiction for such an order is derived from s 35 of the Act. According to the geotechnical engineering report exhibited to Paula Slade’s statement of evidence filed 24 November 2022, the high-water table and the shrinking and swelling caused by the dam seepage could have a damaging effect on the structures nearby. It follows that it was necessary to make an order about the dam wall’s placement away from the boundary line to effectively build a replacement fence. 13 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Fox v Percy (2003) 214 CLR 118 at 125-126; JM v QFG and KG [1998] QCA 228 at 20; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. -- 6 of 7 -- 7 [34] As to the council’s requirement that the dam wall batter be 300mm from the wall, Ms Hindmarsh of the council stated the batter needed to be ‘at least 300mm’ from the wall. If that could not be achieved, a retaining wall would be an acceptable solution. The magistrate effectively ordered both. The magistrate’s order was compliant with council requirements. [35] The appellants do not advance any reason it is relevant that Mr Slade made a 1.4m cut vertical cut along the boundary wall. Nor do they explain how the magistrate’s alleged failure to consider this fact led to an error in the decision. Privacy ground [36] QCAT has jurisdiction under the Act to decide that a dividing fence is a sufficient dividing fence.14 Privacy is one of the factors a decision-maker should consider in determining whether a fence is sufficient15 though it is not the only factor. [37] The magistrate was not convinced the Ellis’ right to privacy as provided by a fence outweighed the other considerations in favour of a wire fence (similarity with other fences in the area and comparative price of replacement). It was conceded during the hearing privacy could be attained by other methods. It was open to the magistrate to make this decision. Leave to appeal on this ground is refused. Order [38] The appellants have not adduced evidence of mistakes in fact or law by the magistrate. It was open to the magistrate to make the findings made in the proceeding below. [39] The application for leave to appeal or appeal is dismissed. [40] The stay of the decision made 8 February 2023 in proceeding MCDQ16/22 (Maryborough) is lifted. 14 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 13(1)(c)(ii). 15 Forostenko & Donnelly v Lloyd [2015] QCATA 154; Teitzel v Houston [2018] QCATA 64 [39]. -- 7 of 7 --