De Francesco & Anor v Arthur & Anor [2023] QCATA 134

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: De Francesco & Anor v Arthur & Anor [2023] QCATA 134 PARTIES: PAMELA LINDA DE FRANCESCO EUGENE DE FRANCESCO (applicant/appellant) v SAM MCLEAN ARTHUR SHERIDAN LOUISE ARTHUR (respondent) APPLICATION NO/S: APL049-22 ORIGINATING APPLICATION NO/S: NDR181-19 MATTER TYPE: Appeals DELIVERED ON: 23 October 2023 HEARING DATE: 9 October 2023 HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: Leave to appeal refused. Appeal dismissed. CATCHWORDS: REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – OTHER MATTERS – where the applicants filed a tree dispute application – where the trees were subsequently removed and the remaining issue pertained to a dividing fence – where the applicants claim the tribunal should deal with the application as an dividing fence dispute – whether the tribunal should have dealt with the application as a dividing fence dispute REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – NOTICE – where the application was filed more than 2 months after notice of contribution was given to the neighbours – whether the tribunal erred in not extending the time for the applicants' to file the application for a dividing fence dispute – whether the power of the tribunal under s 61(1)(a) of the QCAT Act to extend a time limit is confined to procedural requirements – where the applicants did not apply for an extension of time to commence a proceeding for a dividing fence dispute -- 1 of 13 -- 2 APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – COSTS – where the appellants say the learned member’s discretion miscarried in making no order for costs – whether the learned member erred in finding the parties had reached an agreement to resolve the dispute – whether any error in the learned member's finding that the parties had reached an agreement led to error in not exercising the member's discretion to award costs Queensland Civil and Administrative Act 2009 (Qld), s 61(1)(a) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 31(6), s 35(1)(f), s 35(6) Bull v Porteus [2018] QCATA 100 Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37 Dwyer v Nel [2021] QCA 165 Pai & Anor v Daubney & Anor [2023] QCATA 39 Pollard & Anor v Fitzgibbon & Anor [2019] QCATA 42 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION [1] This appeal is about a tree dispute. [2] The Tribunal dismissed the application for a tree dispute and dismissed an application for costs by the appellants (the applicants below). The appellants appeal the decision. The proceeding below [3] On the respondents’ land grew a stand of golden cane palms (‘the trees’) immediately adjacent to a wooden dividing fence between the parties’ properties (‘the fence’). [4] The appellants said that the trees had damaged, and continued to damage, the fence. They wanted the trees removed at the respondents’ expense. The appellants commenced the proceeding below. The Tribunal engaged an assessor to investigate and report on the trees. The assessor recommended, among other things: that work be undertaken on the trees to remove overhanging branches; the trees’ root mass be reduced to 300mm within the respondents’ property; that a root barrier be installed on the respondents’ land; and that regular pruning work be undertaken to remove overhanging fronds. The assessor also recommended that a survey of the boundary -- 2 of 13 -- 3 between the parties’ properties be undertaken to ensure that a replacement fence was constructed on the boundary line. [5] After the assessor’s report was provided to the Tribunal and the parties, a compulsory conference was conducted. Following the conference a settlement agreement was prepared by the Tribunal and submitted to the parties. The agreement set out a sequence of steps to be undertaken: the removal of the existing fence; the performance of the tree work recommended by the assessor; the survey of the boundary line; and the construction of the new fence. The agreement provided for the appointment of a specified surveyor to undertake the boundary line survey. [6] The appellants were not prepared to sign the agreement. They objected to the named surveyor on the basis that he was known to the respondents. The appellants also identified a number of typographical errors in the draft agreement relating to paragraph numbering. [7] Subsequent to the compulsory conference the respondents removed the trees. The appellants thereafter sought orders relating to the construction of the dividing fence. Following a further directions hearing on 20 October 2021 the Tribunal made directions for the parties to file submissions ‘on the issue of costs and the issue of the fence’. Thereafter the Tribunal made a final decision dismissing the application for a tree dispute and ordering that each party bear their own costs. [8] It is not contentious in this appeal that the directions required the parties to address, firstly, whether the proceeding should continue as a dividing fence dispute and, secondly, the costs of the proceeding. The grounds of appeal and the appeal framework in QCAT [9] At the hearing of the appeal, the appellants’ grounds of appeal were clarified as follows: (a) Ground of appeal 1 – The learned member erred in not ordering that the proceeding continue as a dividing fence dispute. This ground of appeal involves a second limb. The appellants say that the learned member erred in not extending time for the filing of the application as a dividing fence dispute; (b) Ground of appeal 2 – The learned member erred in the exercise of the discretion not to award costs. The appellants say that the learned member proceeded on the erroneous basis that the appellants had agreed to the terms set out in the draft agreement prepared following the compulsory conference; (c) Ground of appeal 3 – The learned member erred in finding that the appellants could have taken steps to undertake the work associated with the construction of a dividing fence; and (d) Ground of appeal 4 – A miscellany of errors. There are numerous errors asserted by the appellants which have I will deal with together under a separate ground. [10] Ground of appeal 1 involves a question of law. Ground of appeal 2 involves a question of mixed law and fact. Ground of appeal 3 involves a question of fact. Ground of appeal 4 involves questions of fact, of law and of mixed law and fact. [11] An appeal on a question of law is as of right. An appeal on a question of fact or mixed law and fact requires the leave of the Appeal Tribunal. The principles for granting leave are well established by authority: there is a reasonably arguable case of error in -- 3 of 13 -- 4 the primary decision;1 there is a reasonable prospect that the appellant will obtain substantive relief;2 leave is needed to correct a substantial injustice caused by some error;3 there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.4 Consideration Ground of appeal 1 [12] The relevant enabling Act is the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’). Chapter 2 of the ND Act deals with dividing fences. Chapter 3 deals with trees. [13] Where a property owner wishes to construct a dividing fence and seeks contribution from the adjoining owner toward the cost of the fence, except in cases where urgent fencing work is required or where no contribution to the cost of the fence is sought,5 a notice to contribute must first be given to the adjoining owner. Section 31 of the ND Act sets out the requirements for a notice. Importantly, if within 1 month after the notice is given, the adjoining owners cannot reach agreement about the proposed fencing work, either owner may apply to the Tribunal for an order under s 35 of the ND Act. By s 35(6), the proceeding must be commenced within 2 months after the notice is given. [14] It is appropriate to note here that the Building Act 1975 (Qld) (‘Building Act’) deals with dividing fences that are also swimming pool barriers. Part of the dividing fence between the parties’ properties was a barrier in respect of swimming pools located on each property. I will refer to the provisions of the Building Act relevant to the present dispute later in these reasons. For the moment, it is sufficient to observe that the Building Act contains notice provisions largely mirroring those found in the ND Act. [15] The appellants gave to the respondent a notice of contribution pursuant to s 31(1) of the ND Act on 2 October 2019. The proceeding below was commenced on 18 December 2019. The proceeding was not commenced within 2 months from the date the notice was given as required by s 31(6). [16] The appellants say that the learned member could, and should, have ordered that the matter proceed as an application for a dividing fence dispute and should have extended time for the filing of the application, exercising the power conferred by s 61(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) which provides that the Tribunal may, by order, extend a time limit fixed for the start of a proceeding by the QCAT Act or an enabling Act. [17] As noted earlier in these reasons, it was not contentious at the time of the decision below that the trees on the respondents’ land had been removed. There remained two issues to be resolved – the dividing fence and the costs of the proceeding. The Tribunal invited submissions from the parties on each of these issues. 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (‘QUYD’). 2 Cachia v Grech [2009] NSWCA 232. 3 QUYD (n 1). 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577. 5 Collins v O’Rourke & Anor [2019] QCATA 164. -- 4 of 13 -- 5 [18] The appellants filed two sets of submissions, one addressing the issue of costs and the other addressing the dividing fence. In the submissions relating to the fence the appellants’ sought orders that: a surveyor be appointed to survey the boundary between the parties’ properties; the parties contribute equally to the cost of the surveyor; a dividing fence be constructed on the boundary line; and the parties contribute equally to the cost of the fence. [19] The respondents said that they remained willing to comply with the terms of the draft agreement regarding the construction of the dividing fence. [20] The essence of the appellants’ complaint as it relates to ground of appeal 1 is that the learned member did not proceed to deal with the matter as a dividing fence dispute. There are two principal difficulties facing the appellants. [21] Firstly, the proceeding was not commenced, nor prosecuted, as a dividing fence dispute. Dividing fence disputes are minor civil disputes.6 The proceeding below was commenced as, and remained, a dispute about the trees on the respondents’ land. Tree disputes are not minor civil disputes. [22] There were as between the parties two contentious matters. The first was the presence of the trees on the respondents’ land and the effect the trees had on the appellants’ land and property on the land, including the dividing fence. The second issue was the dividing fence and the view of the appellants that the fence required replacement. To some extent the issues overlapped however the trees affected only part of the fence. It is reasonably clear that the appellants apprehended that the two issues were separate and distinct. The appellants gave a notice to contribute to the respondents. Rather than commence a proceeding for a diving fence dispute they chose to pursue the proceeding in respect of the tree dispute. Although this may reflect a lack of familiarity with Tribunal practice and procedure, the fact remains dividing fence disputes and tree disputes involve quite different proceedings involving quite different considerations. The power of the Tribunal to award costs is but one example of this difference. In a proceeding for a dividing fence dispute, the relevant provisions of the QCAT Act and Rules relating to costs in minor civil disputes are applicable. In a proceeding for a tree dispute, the costs provisions in Part 6, Division 6 of the QCAT Act apply. [23] The second difficulty facing the appellants is that at no stage did they apply to the Tribunal to have the proceeding dealt with as a dividing fence dispute. Had they done so, the issue of the application having been commenced outside of the time limit prescribed by s 31(6) would have been enlivened. This is apparent from the reasons.7 [24] In Bull v Porteus,8 the Appeal Tribunal considered whether s 31 of the ND Act was a substantive or procedural provision. The Appeal Tribunal concluded that the provision was substantive, stating: The special remedy created by section 31(6) defines and limits the jurisdiction of the tribunal and an applicant’s cause of action. It is a mandatory, substantive rule of law that the tribunal has no power to repeal or amend. This type of statute was has been described by members of the High Court as creating: 6 QCAT Act, schedule 3. 7 Reasons [46]. 8 [2018] QCATA 100. -- 5 of 13 -- 6 ... a right of limited duration so that, after the expiry of the time prescribed, the right ceases to exist for any purpose. Such a statute is substantive in nature. And in an earlier High Court case: When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised, and the conditions and restrictions which must be observed [in so doing], it excludes the operation of general expressions [such as QCAT Act, s 61] ... which might otherwise have been relied on for the same power.9 [25] The Appeal Tribunal noted that s 61(1)(a) is focused on procedural requirements. The Appeal Tribunal concluded that s 31(1) was a substantive provision and that s 61(1)(a) could not be relied upon to vary the time limit to commence proceedings for a dividing fence dispute. [26] In Pollard & Anor v Fitzgibbon & Anor,10 the Appeal Tribunal concluded that the operation of s 61(1)(a) was not confined to circumstances involving purely procedural requirements. The Appeal Tribunal held that the section gives the Tribunal power to extend time for the start of a proceeding even if the effect of this is that the Tribunal is giving itself jurisdiction to hear the proceeding.11 The Appeal Tribunal stated: The question is, whether, having regard to the enabling Act and the QCAT Act together and as a whole, and in particular having regard to their aims and objects, and having regard to the wording of the particular time limit concerned in its legislative context, the legislative intent is that the power to extend time to start proceedings section 61(1) is not to operate.12 [27] The operation of s 61(1) of the QCAT Act was considered by the Court of Appeal in Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors.13 In Campaigntrack the relevant enabling Act provided that, if a claim against the Property Agents and Motor Dealers Act 2000 (Qld) claim fund was not made within a stated period, the chief executive was required to give the claimant a notice stating that the claim was out of time and that the person ‘may apply’ to the tribunal within 14 days after being given the notice for an extension of time to make the claim. The enabling Act also provided that the tribunal could extend the time to make a claim if satisfied as to certain matters. [28] The chief executive argued that the relevant provisions should be construed as requiring that a claimant ‘must apply’ to the tribunal within 14 days. Applegarth J, with whom the other members of the court agreed, stated: In my view, clear words would be required to provide that the application must be made within 14 days, after which there is no scope to extend the time to make an application for an extension of time or to waive the 14 day procedural requirement. … 9 Ibid at [12]. 10 [2019] QCATA 42. 11 Ibid at [30]. 12 Ibid at [40]. 13 [2016] QCA 37 (‘Campaigntrack’). -- 6 of 13 -- 7 One should not lightly infer a legislative intent to shut out deserving claimants from seeking an extension of time under s 511. For example, a claimant might fail to apply for an extension of time within the 14 day period stated in the notice because he or she was in a coma in hospital and unable to make the application. One can imagine other deserving circumstances in which a claimant fails to make the application within the 14 day period stated in the notice. In summary, this is not a case in which the relevant provisions, either expressly or by necessary intendment, create a time limit beyond which no application for an extension of time may be made. As a result, the case is not one of inconsistency between the modifying provisions of an enabling Act and the provisions of the QCAT Act. It is unlike a case where, for instance, a provision of an enabling Act imposes a 14 day period within which an application to the Tribunal must be made and the QCAT Act allows 28 days to do so, giving rise to an inconsistency between the time stated in the enabling Act and the time stated in the QCAT Act. Instead, one has a time period in the enabling Act and a provision in the QCAT Act which empowers the Tribunal to extend that time. Section 61 assumes the existence of such a provision about the time within which to bring an application (or some other procedural requirement) and is not inconsistent with it. In addition, it cannot be that an inconsistency with s 61 of the QCAT Act arises whenever a provision of an enabling Act deals with the matter of timing, such as the time within which an application may be filed. Were that so, s 61 would have little work to do. Section 61 exists for a variety of cases in which enabling Acts or the QCAT Act may fix a time limit or impose other procedural requirements. Its presence removes the need to laboriously insert in numerous enabling Acts words such as “unless the Tribunal extends the time or waives compliance with this requirement” in conjunction with time limits or other procedural requirements. Section 61 will not apply if the enabling Act indicates otherwise, for example, by stating that the period cannot be extended, that s 61 of the QCAT Act does not apply to empower the Tribunal to extend the time, or that an application must be brought in a certain time, failing which the Tribunal shall not decide the application. Where an intent to preclude an extension of time under s 61 is evident, there will be an inconsistency between the modifying provision and s 61 so that the modifying provision prevails in accordance with s 7 of the QCAT Act. This is not such a case. Recognition in s 473(5)(b) and s 511(1)(a)(i) of PAMDA of a time within which an application for extension may be made is not inconsistent with a provision to extend that time in a deserving case. I conclude that the Appeal Tribunal erred in law in concluding that s 61 of the QCAT Act is inconsistent with s 473(5)(b) and s 511(1)(a)(i) of the PAMDA when read together. The provisions are not inconsistent and, as a result, the operation of s 61 was not excluded. [29] Applying the reasoning as clearly set out in Campaigntrack, the issue of whether the time to commence a proceeding for a dividing fence dispute may be extended by s 61 of the QCAT Act is to be determined by construing the meaning of s 31(6) of the ND Act and, specifically, whether the legislature intended that the time to file an application for a dividing fence dispute, where a contribution notice has been given, could not be extended by the Tribunal exercising the power conferred by s 61(1)(a). -- 7 of 13 -- 8 [30] Section 31(6) of the ND Act uses the words ‘either adjoining owner may …. apply to QCAT.’ The fact that s 31(6) does not use the words ‘must’ or ‘may only’ or expressly prohibits the making of an application at a later time, favours a construction of the section that the time to apply to the Tribunal may be extended in appropriate cases. The statutory scheme considered in Campaigntrack was arguably one in relation to which a stricter approach to time limits was justified than applies to dividing fence disputes. For example, if a property owner fails to commence proceedings within 2 months after giving a contribution notice, the property owner can simply give another contribution notice effectively restarting the 2 month period. This was not the case with the PAMDA legislation. One of the objects of the ND Act is to facilitate the resolution of any disputes about dividing fences or trees that arise between neighbours.14 Neighbours are encouraged to attempt to resolve a dividing fence issue informally.15 If neighbours cannot resolve a dividing fence issue, the dispute may be taken to QCAT.16 Clearly, if a proceeding is not commenced within 2 months after a contribution notice is given, removing any discretion from the Tribunal to extend time to commence the proceeding is not consistent with the dispute resolution objective of the ND Act. Indeed, it would lead to the prolongation of disputes. Nor would it be consistent with the objects of the QCAT Act and functions of the Tribunal. These factors favour the Pollard approach to the construction of s 31(6). [31] Further, and as was noted by the Appeal Tribunal in Pollard, the Tribunal cannot extend or shorten time if to do so would cause detriment or prejudice to another party not able to be remedied by an order for costs or damages.17 Any application to extend time would require consideration of well established principles.18 These considerations ensure that the discretion to extend time will be exercised only in appropriate cases taking into consideration, inter alia, the possibility of prejudice to the other party. [32] For the reasons set out, I favour a construction of s 31(6) consistent with Campaigntrack and Pollard. It follows that it is unnecessary to consider whether there is an inconsistency between s 31(6) of the ND Act and s 61(1)(a) of the QCAT Act which would enliven the operation of s 7(2) of the QCAT Act. [33] However the appellants face yet a further, and this time insurmountable, hurdle. They did not apply for an order extending time to commence a proceeding for a dividing fence dispute. [34] In Pai & Anor v Daubney & Anor19 the Appeal Tribunal noted: [14] A difficulty for this argument is that section 61 was not mentioned at the trial. Pai did not invoke it, and the Adjudicator did not consider it. He was not asked to do so. Had he been asked, he would not have been bound to grant an extension, and a refusal to exercise the discretion positively would not have been an error of law. 14 ND Act, s 3(a). 15 Ibid, s 7(3). 16 Ibid, s 7(4). 17 QCAT Act, s 61(3). 18 Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70. 19 [2023] QCATA 39. -- 8 of 13 -- 9 [15] Section 61 does not spontaneously exert its benign influence. It confers a discretion – not an obligation – that does not operate unless it is invoked in the proceedings in question. Unless and until it is invoked and is favourably exercised, the provisions of section 31(6) inevitably operate. That is the position here. [35] The above passage is of direct relevance for present purposes. The learned member was not obliged to consider the application of s 61(1)(a) in the absence of an application by the appellants addressing the relevant considerations. To have done so in the absence of inviting submissions on the issue from the respondents would have been to deny the respondents procedural fairness. Indeed, for the learned member to have unilaterally raised the issue when the appellants failed to do so would arguably have been procedurally unfair in the particular circumstances of the proceeding below and the directions made by the Tribunal. It was for the appellants to conduct their case as they considered appropriate. It was not for the learned member to assist the parties to prove their respective cases or to give advice to the parties about how to conduct the proceedings.20 [36] In the proceeding below the learned member stated: As for the fence, the current application is not an application for orders in relation to a dividing fence under the dividing fence provisions of the NDA or the Building Act. Such an application would be filed the minor civil dispute jurisdiction, which is entirely different to an application for a tree dispute. Even if the application was a valid dividing fence application, the application was filed more than two months after the Notice to Contribute was issued and therefore, has been filed out of time and would be dismissed on that basis.21 [37] There was no error by the learned member in treating the proceeding as a tree dispute and not a dividing fence dispute. Nor was there error by the learned member in concluding that, even if the proceeding was treated as a dividing fence dispute, the application had been filed out of time. Ground of appeal 1 is not made out. Ground of appeal 2 [38] The appellants say that the learned member’s discretion miscarried in making no order for costs. Ground of appeal 4 also relates to this assertion. I will address that ground of appeal later in these reasons. [39] As the Court of Appeal noted in Dwyer v Nel: The award of costs is an exercise of discretion. Consistent with House v The King, to succeed the appellant must establish some error has been made by the trial judge in the exercise of that discretion. That is, the trial judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts or failed to take into account a material consideration.22 [40] The appellants say that the learned member erroneously found that while they had not signed the settlement agreement, the appellants had confirmed in writing that agreement was reached. I accept that the learned member erred in making this finding. 20 Harrison & Anor v Meehan [2017] QCA 315. 21 Reasons [45]-[46]. 22 [2021] QCA 165. -- 9 of 13 -- 10 As I have outlined earlier in these reasons, while the appellants’ communicated to the Tribunal and to the respondents that they ‘generally agree(d)’ with the agreement, they did not agree with the appointment of the surveyor nominated by the respondents. It could not therefore be said that the ‘agreement was reached’. Nevertheless, and for the reasons that follow, I do not accept that this finding led to error in the exercise of the learned member’s discretion. [41] It is apparent from the reasons that the learned member understood that the appellants took issue with the proposed surveyor.23 The learned member noted that the respondents had presented to the appellants an alternative proposal in relation to the appointment of a surveyor. That alternative involved the appointment of another surveyor however, noting that the cost of the new surveyor would be higher, the respondents were only prepared to contribute half of the original cost. The position taken by the respondents was not unreasonable. The basis of the appellants’ objection to the originally proposed surveyor was without foundation and, even if the objection had substance, they were presented by the respondents with a reasonable option which they did not accept. [42] The learned member’s finding that the appellants had resisted opportunities to resolve the dispute was a reasonable one in the circumstances. There is nothing in the reasons to suggest, as the appellants submit, that the learned member’s finding the appellants had confirmed in writing that agreement had been reached, of itself led to error. Contrary to the appellants’ contentions, one need not look far to see examples of the appellants’ conduct consistent with an assertion that there had in fact been an agreement. In an application for costs filed by the appellants in the proceedings below they asserted: The respondents reneged on Fence Work to be completed in accordance with the QCAT Agreement, giving rise to further QCAT proceedings. We believe the reasons for reneging on the Agreement are vexatious and serve to punish us for the removal of their trees and raised garden beds. (emphasis added) [43] In submissions filed in support of an interlocutory application the appellants asserted: The respondents still refuse to build the fence per the QCAT Agreement and Scott Geert’s quote, dated 22 February 2021. (emphasis added) [44] The record of proceedings below is replete with such examples. It is highly disingenuous of the appellants to assert error by the learned member in exercising the costs discretion in circumstances where it was the appellants themselves who sought to rely upon an agreement reached by the parties at the compulsory conference. [45] Ground of appeal 2 is not made out. Ground of appeal 3 [46] The appellants say that the learned member erred in finding: Since 2 October 2019, when fence quotes and Notices to Contribute were exchanged, and since March 2021 when agreement was reached based on a quote by Gold Coast Fencing for a 2-metre high fence, the applicants have had opportunities to replace the fence that they have not taken up. The matter 23 Reasons [51]. -- 10 of 13 -- 11 escalated to the point that they have received an enforcement notice from Council in relation to the fence in August 2021 and still they did not act.24 [47] The appellants say that building the fence was impossible while the trees remained in situ. They also say that the respondents were not prepared to agree to the construction of an appropriate dividing fence. [48] The appellants did however, as the learned member found, have opportunities to replace the fence. Firstly, they could have commenced proceedings for a dividing fence dispute after the contribution notice was not productive of a resolution. The appellants’ position that the tree issue first required resolution before the dividing fence issue could be addressed was not correct. The Tribunal may, in a proceeding for a dividing fence dispute, order any other work be carried out that it necessary to carry out the fencing work.25 Work relating to trees necessary to enable the construction of a dividing fence would presumably fall within the ancillary power conferred by s 35(1)(f) of the ND Act.26 Despite the foregoing the appellants chose to pursue the tree dispute proceeding. [49] Secondly, despite the issues to which I have earlier referred regarding the surveyor named in the settlement agreement, the respondents presented to the appellants an entirely reasonably proposal in relation to the cost of engaging an alternative surveyor. This proposal was made before the enforcement notice was issued by the Council. This further opportunity to replace the fence was not taken up by the appellants. [50] There was no error by the learned member. Ground of appeal 3 is not made out. Ground of appeal 4 – other matters raised by the appellants in their appeal submissions [51] The consideration of the various other matters raised by the appellants is confined to those matters not addressed in respect of grounds of appeal 1, 2 and 3. [52] The appellants say that the learned member erred in finding that the recommendations by the respondents’ arborist mirrored the recommendations by the tribunal assessor. The learned member made no finding to this effect. Rather the learned member was simply restating the respondents’ submissions. [53] The appellants say that the learned member incorrectly assumed that the existing fence has an overall height of two metres along the entire boundary. Again, the learned member made no finding to this effect and simply restated the respondents’ submissions. [54] The appellants say that the learned member erred in accepting only the respondents’ comments about surveying the boundary. The learned member made no finding to this effect and simply restated the respondents’ submissions. It is also apparent from the reasons that the learned member understood the need for a survey of the boundary line to be undertaken before a replacement fence could be conducted. [55] The appellants say that the learned member failed to take into consideration their submissions relating to the fence. This is said to arise out of the reference by the learned member to an issue relating to the respondents’ seeking to affix lattice to the 24 Reasons [41](c). 25 ND Act, s 35(1)(f). 26 See White v Steer [2018] QCATA 30. -- 11 of 13 -- 12 proposed fence when that matter had in fact been resolved. There is nothing in the reasons to suggest that the learned member did not consider the totality of the parties’ submissions. [56] The appellants say that the learned member referred to incorrect sections of the Building Act. At the heart of this submission is the appellants’ contention that the dividing fence was also a pool fence in respect of each of the parties’ properties – that is, each party had a swimming pool adjacent to the fence. The learned member referred to s 245XD, s 245XH(1) and (2) and s 245XK of the Building Act. Noting that there was a swimming pool on each parcel of land, the applicable sections of the Building Act were s 245XE and s 245XH(4). Nothing turns on this. Where there are swimming pools situated on adjoining land, the owners are required to contribute equally to the cost of a dividing fence. The process in relation to the giving of a notice of contribution relating to fencing work remains the same. The provisions in relation to urgent fencing work in the Building Act are the same whether there is a pool on only one parcel of land or if there is a pool on each parcel of land. Nor is there any substance in the appellants’ submission that the learned member failed to consider s 245XJ. There was no evidence before the learned member that the damage to the fence was caused by the negligent or deliberate act or omission of the respondents. Even had such a finding been made, the notice provisions were required to be followed by the appellants. [57] The appellants say that the learned member erred in finding that the opinion of the assessor engaged by the Tribunal supported the respondents’ case. This was however precisely the case. The finding which the appellants seek to impugn is confined to the work to be undertaken on the trees. The respondents did not want the trees removed. The assessor did not recommend the removal of the trees. That the respondents subsequently removed the trees is irrelevant. The appellants’ complaint is without substance. [58] The appellants complain that the learned member found that the respondents had not demanded that they be permitted to affix lattice to the fence and that, as a result, their complaint about the issue was trivialised. It is not explained by the appellants how this is said to have led to error by the learned member in making no order for costs. There is no substance in this submission. [59] The appellants say that the learned member erred in finding that the respondents remained ready willing and able to proceed with the agreed fence. The appellants say that the respondents do not agree to the construction of a fence in accordance with the quote referred to in the settlement agreement. To the contrary, in their submissions to the Tribunal the respondents said that they were ‘committed to this agreement’ and that the dividing fence ‘… will be built in accordance with the QCAT ruling on the 23rd February 2021.’ The reference to the QCAT ruling is clearly a reference to the settlement agreement prepared following the compulsory conference. There is no substance in the appellants’ submission. [60] The appellants say that the learned member erred in finding that nothing in the conduct of the respondents had disadvantaged the appellants and that the appellants had been resistant to opportunities to resolve the dispute. It was open on the evidence before the learned member to conclude as she did. There was no error by the learned member. [61] The appellants say that the learned member failed to treat the dispute like other cases. Presumably this is a reference to s 4(d) of the QCAT Act which provides that the -- 12 of 13 -- 13 Tribunal must ensure like cases are treated alike. The appellants point to two previous Tribunal decisions which they say involved similar circumstances with quite different outcomes. Every case must be decided on its merits based on the facts as found by the Tribunal and the application of the law to those facts. There is no substance in this submission. Conclusion [62] The appellants have failed to establish error by the learned member. For the reasons set out the learned member’s discretion in making no order as to costs did not miscarry. Nor was there error by the learned member in dismissing the application. [63] Leave to appeal is refused. The appeal is dismissed. -- 13 of 13 --