Crowther v Body Corporate for Temore Court [2013] QCATA 337

CITATION: Crowther v Body Corporate for Temore Court CTS 11611 [2013] QCATA 337 PARTIES: Claire Crowther (Applicant/Appellant) v Body Corporate for Temore Court CTS 11611 (Respondent) APPLICATION NUMBER: APL242-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Oliver DELIVERED ON: 20 December 2013 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: Dividing Fences – where Tribunal made findings of fact as to the state of the existing fence – whether any basis to disturb the findings of fact – where no error of law. Queensland Civil and Administrative Tribunal Act 2009 ss 142(3) Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232; 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. APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISIONi [1] Ms Crowther lives in one of Brisbane’s high density residential suburbs. On one side of her house there is a child care centre and on the other side is Temora Court a residential unit block. Between Ms Crowther’s property and Temora Court there is an old paling fence. The fence has been there for over thirty (30) years and has fallen into a state of disrepair. [2] As it was entitled to do, Temora Court sought to have the fence replaced and gave Ms Crowther a Notice to Contribute for Fencing Work under the then Neighbour Disputes Resolution Act 2011. An agreement could not be reached between them as to the need to replace the fence or the cost and therefore Temora Court filed an application in the minor civil disputes jurisdiction of the Tribunal on 1 March 2013 seeking an order that the fence be replaced and that Ms Crowther pay for half the cost of the new fence. [3] After a hearing of the application on 6 June 2013, the Tribunal made an order that a fence be constructed on the entire boundary to a height of 1.8 metres (as per the K. Lyon quote of 7 December) with each party to contribute fifty percent of the total cost. Ms Crowther’s liability for the fence is $2,225. It was also ordered that the fence be constructed within six (6) months. The Tribunal gave reasons for its decision. [4] From that decision, Ms Crowther has filed an application for leave to appear or appeal. An appeal from the minor civil disputes jurisdiction is not an opportunity for a party dissatisfied with the outcome of the original hearing to re-litigate the dispute that was before the original Tribunal. Section 142(3) of the QCAT Act provides that a party can only appeal a decision from the minor civil disputes jurisdiction if the appeal Tribunal gives leave, or permission, to appeal. [5] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice to the applicant caused by some error?3 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?4 [6] I specifically mentioned that the application for leave to appeal is not a rehearing of the substantive issues because, in support of her application for leave to appeal, Ms Crowther has filed material which indicates she does seek to re-litigate all of the issues that were before the primary Tribunal. She has provided some 27 pages of written submissions 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 2 of 4 -- 3 challenging factual matters that were decided by the Tribunal as well as demonstrating confusion as to what are errors of law and errors of fact. An example is that Ms Crowther makes reference to and relies on certain advice she has sought and received from third parties and also seeks to lead evidence of what occurred in a confidential mediation in May 2013, none of which are relevant to the application. [7] The essential issues in the case for the Tribunal to decide under the Neighbour Disputes (Dividing Fences and Trees) Act 2011 (the Act) were whether the wooden paling fence had deteriorated to the point where it ought be replaced and what type of fence should be constructed if it is to be replaced. [8] Numerous photographs of the existing fence were tendered as evidence in the original proceeding. In addition to the photographs, Ms Crowther gave evidence as to her opinion about the condition of the fence and how she believed it could be repaired at a minimum of cost. Upon these repairs being carried out, she said, the fence would then be fully functional. She also gave evidence to the effect that she was not in a position to make any contribution to the cost of the fence. [9] The Tribunal, in its decision, made findings of fact that the fence, 30 years old, had reached the end of its useful life5. Ms Crowther had not, in her evidence managed to satisfy the Tribunal that she could ‘refute this position’. The Tribunal acknowledged that there was a broader dispute between Ms Crowther and the Body Corporate that had been ongoing for some time but that did not impact on the decision as to whether or not the Tribunal should make an order under the Act. The Tribunal also specifically found that ‘the fence posts are rotten as a result of age, water and vegetation and, therefore need replacing’. [10] The grounds of appeal relied on are those set out in the submission attached to application. There are complaints of denial of procedural fairness, errors of law, errors of fact and lack of expert evidence to substantiate that the fence needed replacing. [11] I had read the submission that has been filed as well as the transcript of the evidence before the Tribunal. I am not able to discern any error of law because once the Tribunal made a finding of fact that the fence was passed its useful life, and needed replacing then it was compelled under the relevant legislation to make the order sought by the respondent. It is not for the Appeal Tribunal to interfere with findings of fact if those facts were open on the evidence before it. The photographs themselves, even without any oral evidence, demonstrate that the fence is in a state of disrepair and falling down in places. The conclusion reached that it was beyond its useful life was not only open on the evidence, it was the only reasonable conclusion that could be drawn from that evidence. 5 Transcript page 1. -- 3 of 4 -- 4 [12] As to the contention that there has been a denial of procedural fairness, the transcript demonstrates that Ms Crowther had every opportunity to put forward her evidence in opposing the orders sought. In fact, the evidence went beyond that which was relevant to the decision that was required to be made, but Ms Crowther was permitted to lead the evidence to ensure that she had every opportunity to present her case. That is acknowledged in the reasons of the Tribunal. [13] Ms Crowther’s impecuniosity also was also taken into account by the Tribunal. It carefully considered the various quotes that were provided, selected the cheapest and most economical quote and ordered Ms Crowther to pay for half that. Even if Temora Court decided to build a more expensive fence, her maximum liability was capped at $2,225. Every consideration was given to Ms Crowther in coming to the decision. [14] On a review of all the material, even Ms Crowther’s 27 page submission, no error has been identified which would warrant a granting of leave to appeal. Even if the matter was to be reheard on the same evidence, the conclusion would, in my view be the same. There is no question of general importance to be considered in this case nor has there been any substantial injustice. [15] For these reasons, leave to appeal should be refused. i Reasons amended in accordance with Tribunal decision dated 18 November 2015. -- 4 of 4 --