Benger v Sambanis [2013] QCATA 86

CITATION: Benger v Sambanis [2013] QCATA 086 PARTIES: Carol Lea Benger (Applicant/Appellant) V Marie Sambanis (Respondent) APPLICATION NUMBER: APL409-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 13 March 2013 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – DIVIDING FENCE – whether the Notice to Contribute for Fencing Work complied with s 31 of the Neighbour Disputes Resolution Act 2011 – whether the fence was appropriate for the area – admissibility of evidence. Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Neighbourhood Dispute Resolution Act 2011, s 31 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). REASONS FOR DECISION [1] Ms Benger and Ms Sambanis are neighbours and therefore share a common boundary. In June 2012 Ms Sambanis gave a Notice to Contribute for Fencing Work (“Notice to Fence”), in Form 2, to Ms Benger advising that she proposed to erect a fence on the common boundary. The Notice to Fence was delivered in accordance with s 31 of the Neighbourhood Disputes Resolution Act 2011. The Notice to fence set -- 1 of 4 -- 2 out the type of fence to be erected, enclosed a quote for the cost of the fence and also a survey prepared by Axis Surveys which showed the fence line. [2] Ms Benger disputed that she had an obligation to contribute to the fence but even so, brought an application in the Minor Civil Disputes jurisdiction making a claim in respect of a damaged corner post on the fence line. In that same minor civil dispute proceeding, Ms Sambanis asked the Tribunal to deal with the Notice to Fence application which was set out in “detail” in an affidavit filed by Ms Sambanis on 22 October 2012. [3] The matter came on for hearing before a Tribunal Adjudicator on 7 November 2012. He made an order that a new dividing fence be erected on the common boundary in accordance with the quote provided with a Notice to Fence and ordered that Ms Benger contribute to the cost of the fence in the sum of $1,597.70. [4] Ms Benger has filed an application for leave to appeal or appeal that decision. As this is an appeal from the Minor Civil Disputes jurisdiction leave to appeal is necessary.1 Leave to appeal will only be granted when there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [5] In the application for leave to appeal, Ms Benger makes a number of complaints about the conduct of the proceeding which included that the learned Adjudicator made an error in permitting Ms Sambanis to proceed with her application. She says that she did not, in effect, receive a fair hearing and that the respondent had “told lies” about matters concerning the application. [6] As these grounds of appeal did not make any attempt to identify any error on the part of the learned Adjudicator, other than raise an issue of procedural fairness, an oral hearing was conducted and I asked Ms Benger to tell the Tribunal her specific complaints about the decision. [7] Her first complaint about the decision was with respect to the Notice to Fence. She said that the quote from the fencer did not contain an Australian Business Number, there were no contact details for the person providing the quote other than an email address, there was no contract in the required Building Services Authority form accompanying the quote, also there was no indication that the person providing the quote was licensed. [8] When this submission was examined, the Notice to Fence, which is in the appropriate form, it was apparent that the Notice to Fence complied with 1 Section 143(2) QCAT Act. -- 2 of 4 -- 3 the essential ingredients required by s 31 Neighbour Disputes Resolution Act 2011. The notice describes the land and the line upon which the fence is to be constructed. It included the type of fencing work proposed to be carried out and the estimated cost of that fencing work. There is also one written quotation attached to the Notice to Fence. Subsection (3) of s 31 is not specific as to what the quotation must contain other than it be a “quotation”. Although the quote attached to the notice does not include all the detail that Ms Benger suggested it should include, it is clearly a written quote signed by the person giving the quote and has an email address which is not uncommon in this electronic age. It also provides detailed costings of the fence to be constructed. [9] One would expect that when the final invoice was rendered for the cost of the work then the necessary detail such as ABN and GST would be included. In any event, I am satisfied, as was the learned Adjudicator, that the Notice to Fence complied with the requirements of s 31 of the Act. I have listed to an audio of the hearing and the learned Adjudicator’s reasons and cannot identify any error on his part in respect of this ground of appeal. [10] The next issue raised by Ms Benger in the appeal is the type of fence to be constructed. It is usual that an order to fence will be made in respect of a fence that is common in the local area. In this case, it is apparent from the photographs that there are paling fences around the subject land. In addition, both Ms Benger and Ms Sambanis have told me that they have development approvals on their property which means that the land may be put to higher density use in the near future. As the learned Adjudicator said, this was not really relevant to his consideration but he did hear evidence from both parties about the type of fence to be constructed. He formed the view that a chain wire fence would not be out of place in the neighbourhood where the land is situated. This decision was open to him on the evidence and I see no reason to interfere with that decision. [11] Ms Benger then contended that the learned Adjudicator made an error in not admitting an affidavit from her solicitor, Mr Neil. That affidavit goes to conversations between Mr Neil and with Ms Sambanis, and as Ms Benger said, put her credit in issue. However, this is not a case about credit. Once a valid Notice to Fence has been delivered then it is for the Tribunal to make a decision about the type of fence to be constructed. This is precisely what the learned Adjudicator did and would not admit the affidavit as its content was essentially irrelevant to the matters he had to consider on this application. Once again, no error has been demonstrated. [12] As for the height of the fence, the learned Adjudicator was satisfied that a 1.8 metre fence was appropriate in the area. Ms Benger submitted that Ms Sambanis should pay a greater contribution for this fence because it exceeds the height of the pre-existing fence of 1.2 metres. I do not accept that argument because both parties have the benefit of the higher fence and there is no evidence of what the differential in cost might be. -- 3 of 4 -- 4 [13] Ms Benger was concerned about the quality of the workmanship on the fence and the fact that the corner post is not at right angles. Unfortunately these are matters which can not be considered in the appeal as leave to appeal is restricted to the decision made by the learned Adjudicator and not the way the fence was ultimately constructed. [14] With respect to the procedural fairness point raised by Ms Benger, I have carefully listened to the audio of the hearing. It is evident to me that both parties did get a fair hearing, both parties were given every opportunity to present their evidence and make submissions before the learned Adjudicator made his decision. I am not satisfied that there has been any denial of procedural fairness. [15] As no error of law has been identified, the conclusions of fact reached by the learned Adjudicator were open on the evidence and there is no substantial injustice, leave to appeal is refused. -- 4 of 4 --