CC Traders Pty Ltd & Lattison Pty Ltd v Body Corporate for Sussex Park & Ors [2016] QCAT 246

CITATION: CC Traders Pty Ltd & Lattison Pty Ltd v Body Corporate for Sussex Park & Ors [2016] QCAT 246 PARTIES: CC Traders Pty Ltd Lattison Pty Ltd (Applicants) v Body Corporate for Sussex Park CTS 26862 Mr Taylor Mrs Taylor (Respondents) APPLICATION NUMBER: MCDO792-16; MCDO322-16 PARTIES: CC Traders Pty Ltd Lattison Pty Ltd (Applicants) v Body Corporate for Sussex Park CTS 26862 Mr Henman Ms Dean (Respondents) APPLICATION NUMBER: MCDO767-16; MCDO516-16 PARTIES: CC Traders Pty Ltd Lattison Pty Ltd (Applicants) v Body Corporate for Sussex Park CTS 26862 Mr Brady Mrs Brady (Respondents) APPLICATION NUMBER: MCDO766-16; MCDO515-16 PARTIES: CC Traders Pty Ltd Lattison Pty Ltd (Applicants) v Body Corporate for Sussex Park CTS 26862 CJ Offner (Respondents) APPLICATION NUMBER: MCDO793-16; MCDO323-16 -- 1 of 4 -- 2 PARTIES: CC Traders Pty Ltd Lattison Pty Ltd (Applicants) v Body Corporate for Sussex Park CTS 26862 Mr Sheehan Mrs Sheehan (Respondents) APPLICATION NUMBER: MCDO796-16; MCDO324-16 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 24 May 2016 HEARD AT: Brisbane DECISION OF: Adjudicator Bertelsen DELIVERED ON: 24 May 2016 DELIVERED AT: Brisbane ORDERS MADE: Same order in all matters: 1. QCAT had jurisdiction. 2. Matters should be heard together. 3. The matters are to be returned to Southport for mediation. CATCHWORDS: JURISDICTION – dividing fence issues – multiple owners – fairness to all parties – mediation and hearing in finality Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 35 Body Corporate for Victoria Gardens CTS 19272 v Banner & Ors [2014] QCAT 246 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] The Tribunal considered that before proceeding further with all five applications two points ought to be clarified at the outset. a) Jurisdiction given that the fencing applications involved common boundary retaining wall issues. -- 2 of 4 -- 3 b) Where multiple property owner abut a single common boundary should all applications involving that single common boundary be heard together. Considerations [2] Five dividing fence applications were lodged at Southport on 21 and 26 April 2016 by CC Traders Pty Ltd and Lattison Pty Ltd. [3] The two applicant corporations are the owners of land described as Lot 900 SP 255821 which land borders a town house complex Sussex Park CTS 26862. Five individual land owners within Sussex Park, Lots 15, 16, 17, 18 and 19 border the approximate 64 metre common boundary with the applicants Lot 900. [4] Fencing quotes obtained for the fencing of the approximate 64 metre common boundary make provision for the replacement of an asserted failed sleeper retaining wall as well as construction of a new fence atop to replace an asserted dilapidated/failed timber paling fence. [5] A further issue raised in the applications is encroachment of the existing retaining wall onto the applicants land by as much as a quarter of a metre and the asserted necessity for a local authority imposed setback within land being retained/supported i.e. Lots 15 to 19. Summary [6] Under s 35 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘NDR Legislation’) QCAT can make orders for fencing work and also order ‘any other work to be carried out that is necessary to carry out the fencing work ordered under this section including work for a retraining wall’. In each instance both the Body Corporate Sussex Park and the individual lot owners have been made respondents to the five applications. Whether and what liability devolves on the Body Corporate and/or lot owners in terms of contribution are matters to be determined by the Tribunal if necessary at hearing. [7] With respect to having all five applications mediated/adjudicated together it is imperative that the Tribunal have a helicopter view of the whole of the fencing issue i.e. the whole approximate 64 metre boundary; that each individual lot owner have their say and hear what the other lot owners and the applicants have to say (after all one quote for the whole of a retaining wall and fence would appear conducive to the integrity of any retaining wall/fence for the whole of common boundary). [8] Individual hearings could well lead to disjointed findings made without reference to or input from other adjoining owners who for instance might dispute findings of apportionment/relief from liability. Clearly any apportionment of liability to contribute ought to be made in the presence of all parties so affected. Whilst that may mean an unusually large congregation of persons at mediation or hearing that is the preferable course to follow. -- 3 of 4 -- 4 [9] Such a situation arose in the Tribunal in Applications MCDO1493-13, MCDO1494-13, MCDO1496-13 and MCDO1497-13 where a body corporate sought fencing orders against individual house lot owners whose land abutted the singular body corporate common boundary.1 [10] That hearing and subsequent decision made it abundantly clear that the preferred course to follow in multiple owner common boundary fencing disputes is to hear all applications together so that fully informed orders can be made to bring the whole of the dispute to finality at the one time. [11] If circumstances arise at mediation or hearing that strongly suggest otherwise then an application supporting such a contention can be made and considered. At this stage all points to one mediation/hearing in accord with QCAT’s obligation to determine applications fairly, justly, economically, informally and quickly. 1 Body Corporate for Victoria Gardens CTS 19272 v Banner & Ors [2014] QCAT 246. -- 4 of 4 --