Chae v Chung [2013] QCATA 208

CITATION: Chae v Chung [2013] QCATA 208 PARTIES: Mr Whisung Chae (Applicant/Appellant) V Mr Henry Chung (Respondent) APPLICATION NUMBER: APL172 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 9 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. Mr Chung shall pay the cost of removing the existing fence and retaining wall to the common boundary. 4. Mr Chung shall pay 75% of the cost of a new brick fence above the retaining wall. 5. Mr Chae shall pay 25% of the cost of a new brick fence above the retaining wall. 6. Mr Chae’s application is otherwise dismissed. CATCHWORDS: MINOR CIVIL DISPUTE – fencing – where fence on retaining wall – where retaining wall defective – where brick fence – where orders unclear – where no reasons for decision – where orders do not conform with statements in hearing – whether grounds for leave to appeal – what fence is sufficient – what proportions of contribution appropriate Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 -- 1 of 5 -- 2 Chambers v Jobling (1986) 7 NSWLR 1 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 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Attorney-general v Kehoe [2001] 2 Qd R 350 Tully v McIntyre [2001] 2 Qd R 338 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Mr Chae and Mr Chung are neighbours. Between them was a double brick fence atop a retaining wall. Both the fence and the wall were cracking and Mr Chae had a report that both the fence and the wall were dangerous. He also had a report that suggested Mr Chung‟s trees were pushing the retaining wall out, causing damage. Mr Chae wanted Mr Chung to build a new retaining wall, at his cost, and they would share the cost of a 1.8m Colorbond fence on top. [2] The tribunal ordered that fencing work be undertaken in accordance with a quote from Grace Property Development. The learned Adjudicator defined the fencing work as: removal of the existing fence; reinstatement of the retaining wall; and construction of a new brick fence. The learned Adjudicator ordered the parties to contribute 50% each to the total cost of the fence. [3] Mr Chae wants to appeal that decision. He says that the order is contrary to the learned Adjudicator‟s oral decision at the end of the hearing. He says that the retaining wall is Mr Chung‟s responsibility. He says that the learned Adjudicator should have ordered the fence be constructed in Colorbond. He says that the cheaper quote was not accepted. [4] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. -- 2 of 5 -- 3 caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?4 [5] At the hearing, the learned Adjudicator made it clear that the Mr Chung was responsible for the cost of the new retaining wall.5 She also made it clear that the tribunal had no jurisdiction, and could not make an order, about the retaining wall.6 The learned Adjudicator‟s order of 17 December 2012, although a little unclear, appears to conflict with her statements at the hearing. Order 1, relevantly, refers to “fencing works” as including the construction of the retaining wall. [6] I can find no reasons for the learned Adjudicator‟s decision. The Tribunal has a duty to give either oral or written reasons for its decisions.7 A failure to give full reasons does not necessarily amount to an error of law. The nature and extent of the obligation will vary according to the nature of the case.8 Here, where the orders are unclear and do not sit exactly with her comments during the hearing, the learned Adjudicator„s failure to give reasons is an error of law and leave to appeal should be granted. [7] The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.9 An appellate tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.10 As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.11 [8] The learned Adjudicator heard both parties about the type of fence that should be built. She told the parties that she would consider quotes before she decided whether the fence should be brick or Colorbond.12 The learned Adjudicator did not say that she would select the cheapest quote; she said she would make a decision that is just and equitable. [9] Both parties have filed fresh material in this appeal. Mr Chae has filed material which he says shows that a Colorbond fence is the appropriate 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. 5 Transcript: page 8 at lines 13-15; page 10 at lines 43-45; page 11 at lines 11-12; page 12 at lines 31-33; page 15 at lines 38-40. 6 Transcript page 16, lines 38-39. 7 Queensland Civil and Administrative Tribunal Act 2009 s 121(4). 8 Attorney-general v Kehoe [2001] 2 Qd R 350 at 356; Tully v McIntyre [2001] 2 Qd R 338. 9 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 10 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 11 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 12 Transcript page 15, lines 42-47; page 16, lines 1-4. -- 3 of 5 -- 4 option. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.13 Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Chae have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?14 [10] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party‟s case at the initial hearing. Mr Chae has provided no explanation as to why this material was not available earlier. The type of fence was a critical issue for the learned Adjudicator. Mr Chae should have known this and he should have provided the information to the learned Adjudicator. However, the fresh evidence is credible and, for reasons which follow, will have an important impact on the result of the case. I will allow the fresh evidence. [11] The learned Adjudicator heard evidence that the fence on top of the retaining wall was poorly constructed. Photos of the fence show that the face on Mr Chae‟s side was built from mismatched bricks, with insufficient or no mortar. It was unattractive and not in keeping with the general neighbourhood. Mr Chae‟s fresh evidence shows that the original boundary fence was a timber fence, and there is some evidence that the brick fence was built within Mr Chung‟s property, while the boundary fence was still in place. [12] The fence failed because the retaining wall failed and there is some evidence that the retaining wall failed due to planting on Mr Chung‟s side of the fence. He should pay for the removal of the fence and wall and the cost of constructing the retaining wall. [13] Mr Chae has provided a map of the area showing the types of fencing. The majority of fences are Colorbond or timber but the fences close to these two properties are brick. Deciding what is an appropriate fence is more difficult here because Mr Chung, for his part, had the benefit of a well- constructed, attractive, brick fence but Mr Chae had an ugly, poorly constructed fence. But I am not satisfied that Colorbond is a sufficient fence for this particular case. At least for this property and this boundary, the parties were used to a brick fence and both must have benefited from the particular properties of a brick fence. Mr Chae should pay something more than 50% of a Colorbond fence but something less than 50% of a brick fence. Because Mr Chae‟s side of the brick fence was poorly constructed, I find that a reasonable contribution is that Mr Chae pay 25% of a brick fence. [14] Leave to appeal is granted and the appeal is allowed. The decision of 17 December 2012 is set aside. Because the fence has been completed, the following decision is substituted: 13 ss 137 and 138 QCAT Act. 14 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 4 of 5 -- 5 a) Mr Chung shall pay the cost of removing the existing fence and retaining wall. b) Mr Chung shall pay 75% of the cost of a new brick fence above the retaining wall. c) Mr Chae shall pay 25% of the cost of a new brick fence above the retaining wall. d) Mr Chae‟s application is otherwise dismissed. -- 5 of 5 --