Amies v Lerve [2014] QCATA 61

CITATION: Amies v Lerve [2014] QCATA 061 PARTIES: John Lowell Amies (Applicant) V James Melton Lerve (Respondent) APPLICATION NUMBER: APL233-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 4 April 2014 DELIVERED AT: Brisbane ORDER MADE: Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTE – DIVIDING FENCE – where the parties are owners of adjoining properties – where the applicant provided estimated cost of fencing work to the respondent – where the applicant carried out fencing work then sought contribution from the respondent – where the respondent refused to contribute – where the Tribunal dismissed the application because the applicant failed to give the respondent a valid notice to contribute – where the applicant seeks leave to appeal that decision – whether the applicant’s conduct was sufficient to amount to a valid notice – whether there was an agreement to contribute to fencing work – whether grounds for leave to appeal PRACTICE AND PROCEDURE – EVIDENCE – OATH OR AFFIRMATION – where the Magistrate did not make the parties swear an oath or affirmation before giving evidence – where the applicant contends the Magistrate should have directed the parties to swear an -- 1 of 4 -- 2 oath or affirmation – where s 28 of the Queensland Civil and Administration Tribunal Act 2009 provides that the Tribunal is not bound by the rules of evidence – whether the Magistrate erred in not directing the parties to swear an oath or affirmation Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 31, s 98 Queensland Civil and Administration Tribunal Act 2009 (Qld), s 28, s 95 Dearman v Dearman (1908) 7 CLR 549, applied Fox v Percy (2003) 214 CLR 118, applied Chambers v Jobling (1986) 7 NSWLR 1, applied QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited Cachia v Grech [2009] NSWCA 232, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited APPEARANCES and REPRESENTATION (if any): The Appeal Tribunal heard and determined this matter on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] Mr Amies and Mr Lerve are neighbours in far north Queensland. In November 2007, Mr Amies met with Mr Lerve to discuss fencing their common boundary. There are two boundaries between the properties: the right hand side and the rear. Mr Amies gave Mr Lerve a written quote from The Fence Shop which showed a cost of $1,650 for the right hand side and $980 for the rear. Mr Amies proceeded with the quoted fencing, expecting that Mr Lerve would pay half the cost of the right hand side fencing. [2] Time passed. Mr Amies suffered unfortunate personal events in 2009 which prevented him from doing anything about recovering Mr Lerve’s share of the right hand side fencing. In September 2012, he gave Mr Lerve another copy of The Fence Shop quote. Mr Lerve did not pay Mr Amies so he filed a claim in the Tribunal. A Magistrate, sitting as an ordinary member of the Tribunal, dismissed Mr Amies’ claim. [3] Mr Amies wants to appeal that decision. He says that the learned Magistrate did not accept copies of photos that showed Mr Lerve’s -- 2 of 4 -- 3 evidence before the Tribunal was wrong. He says that the learned Magistrate did not make both parties swear an oath or affirmation yet he made a finding that it was hard to determine who was telling the truth. Mr Amies does not accept the learned Magistrate’s decision. [4] Because this is an appeal from a decision of the Tribunal in its Minor Civil Disputes jurisdiction, leave is necessary. The Tribunal addresses the question whether or not leave to appeal should be granted according to established principles. Is there a reasonably arguable case of error in the primary decision?1 Is leave necessary to correct a substantial injustice caused by some error?2 [5] In his reasons for decision, the learned Magistrate concluded that Mr Amies’ case must fail unless he had served Mr Lerve a valid notice to fence. He concluded that any notice Mr Amies served in 2007 was no longer valid because it was not an existing notice under s 98 of the Neighbourhood Disputes Resolution Act 2011 (as it then was).3 [6] A notice to contribute to fencing work must meet certain requirements.4 It must be given before fencing work is carried out.5 It must be in the approved form. It must give a description of the land on which the fencing work is to be carried out. It must state the type of fencing work proposed and the estimated cost. It must include at least one quote. It must state how the cost is to be apportioned between the owners. While The Fence Shop quote details the location of the fence, the type of construction and the cost, it is not in the approved form and it does not state how the cost will be apportioned. It is not a valid notice. [7] Even if The Fence Shop quote was a valid notice, Mr Amies had to apply to the Tribunal within two months of giving that notice.6 That was not done. [8] Mr Amies says that the learned Magistrate should have asked them both to swear to their evidence. Evidence before the Tribunal need not be given on oath.7 The Tribunal is not bound by the rules of evidence.8 It must act with as little formality and technicality and with as much speed as the requirements of the Act permit.9 From the transcript of the hearing, it seems that both Mr Amies and Mr Lerve gave their evidence frankly. Requiring evidence on oath would not have improved the quality of that evidence. It was open to the learned Magistrate to proceed as he did in not requiring evidence on oath. 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Ibid. 3 The Neighbourhood Disputes Resolution Act 2011 (Qld) was amended by the Classification of Computer Games and Images and Other Legislation Amendment Act 2013, and renamed the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. 4 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 31. 5 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 30(2), s 37(7). 6 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 31(6). 7 QCAT Act s 95(4)(b). 8 QCAT Act s 28(3)(b). 9 QCAT Act s 28(3)(d). -- 3 of 4 -- 4 [9] The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.10 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.11 However, the Appeal Tribunal must exercise its own discretion when considering whether the original decision maker was in error. [10] There is nothing in the transcript to persuade me the learned Magistrate should have taken a different view of the facts. [11] There is no reasonably arguable case that the learned Magistrate was in error and no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. [12] Leave to appeal is refused. 10 Dearman v Dearman (1908) 7 CLR 549 at 561 per Isaacs J; Fox v Percy (2003) 214 CLR 118 at 125-126 per Gleeson CJ, Gummow and Kirby JJ. 11 Chambers v Jobling (1986) 7 NSWLR 1 at 10 per Kirby P (as his Honour then was). -- 4 of 4 --