Cordingley v Jarvis [2012] QCAT 701

CITATION: Cordingley v Jarvis [2012] QCAT 701 PARTIES: Evan James Cordingley v Delsie Jarvis APPLICATION NUMBER: MCDO93-12 (Ipswich) MATTER TYPE: Other minor civil dispute matters HEARING DATE: 11 September 2012 HEARD AT: Ipswich DECISION OF: Paul Favell, Member DELIVERED ON: 9 November 2012 DELIVERED AT: Brisbane ORDERS MADE: The application is dismissed. CATCHWORDS: Dividing fence claim – Notice to contribute to contribute to fencing work in form required under the Act not given – Jurisdiction Neighbourhood Disputes Resolution Act 2011 APPEARANCES and REPRESENTATION (if any): APPLICANT: Evan James Cordingley RESPONDENT: Garry Jarvis REASONS FOR DECISION [1] Evan James Cordingley and Delsie Jarvis own adjoining properties. Mr Cordingley seeks to have a diving fence erected on the boundary between 21 and 23 Jacaranda Street East Ipswich. [2] In order to commence the process Mr Cordingley wrote to Mrs Jarvis on 25 March 2009. In the letter Mr Cordingley alleged there was some conflict between the tenants of Mrs Jarvis and the tenants of Mr Cordingley. Evidence was given by some of the tenants and it is clear that conflict existed. [3] Mr Cordingley supplied a quote from AK & R Forsyth, a fencing contractor, which quoted $2,750.00 for a 1.8 m hard wood paling fence to be erected -- 1 of 5 -- 2 on the existing fence alignment from the new back fence of Mrs Jarvis to the footpath. He sough a one half contribution of $1,375.00 from Mrs Jarvis. [4] That quote was dated 10 March 2009 and described the fence as “paling fence using all CCA treated hardwood”. It included amounts for other fencing work for which Mr Cordingley was not seeking contribution. [5] On 20 April 20009 Mr Cordingley wrote to Mrs Jarvis asking Mrs Jarvis to advise of her intentions concerning the fence. [6] By 18 April 2012 there was no agreement as to a fence and relationships between the occupants of the adjoining properties had deteriorated. Mr Cordingley again wrote to Mrs Jarvis providing a new quote. That quote was from Ken Martin, dated 29 March 2012 and was to “supply and install 1.8m high timber fence at boundary on 21-23 Jacaranda Street East Ipswich – Bore holes 1m deep for hardwood posts, rails with CCA treated pine paling” for $3,280.00 including GST and materials. Mr Cordingley sought payment from Mrs Jarvis of one half of the quoted price, namely $1,640.00 plus $530.00 which he said was “the additional difference between the two quotes”. [7] I was told that the local government did not have a policy or local law about dividing fences and there was no requirement for fencing work in any development proposals for the properties. [8] Mr Cordingley in his application said that the son of Mrs Jarvis replied in writing to the second letter and agreed to erect part of the fence. In a letter dated 24.04.2009 Garry Jarvis wrote, “I would like to confirm we will replace the fence that is existing on our property now with the same or similar to the new fence just erected at the rear of the property. We will use the existing brown fence as the starting point and replace palings using the existing frame. You should start your fence from the side gate and continue to the boundary peg or where you intend to finish your fence. Regarding costs we will not pay for any of your new fence but will pay for all replacement of our fence as detailed above.” [9] In the application Mr Cordingley seeks orders that the fencing work be done specifying the kind of material to be used and the contribution of each party. He also seeks “$70 damage to hose tap on (his) property” as well as “payment of $530 or the difference between the quote submitted 25/04/09 and the new quote for the same work submitted 18/4/12 (3 years later).” [10] He also seeks an order that Mrs Jarvis pay the costs of any removal, modification or rectification of an unauthorised dividing fence and an order that Mrs Jarvis pay “$70 plumbers account for repair of damaged tap when dog pound was repaired and $220 excess water when pipe was broken in the building of the dog pound plus filing fee, photocopy and postage.” -- 2 of 5 -- 3 [11] To that end Mr Cordingley supplied an invoice from Bruce Smith Plumbing Service dated 15/5/12 for $70.00 for a “repaired tap”. He also supplied a quarterly water and sewerage Account in the sum of $907.42 for the period 1/4/12 to 30/6/12. [12] In Exhibit 1, a letter from Garry Jarvis to Mr Cordingley, it is noted that a fence partly between the two properties is constructed on the property owned by Mrs Jarvis. Mrs Jarvis gave evidence to that effect. It invites Mr Cordingley to construct a 1.8 metre fence at his costs to his property boundary. [13] Exhibit 2 is a complaint to Mr Cordingley made by a tenant concerned with the tenants next door. He complains of lack of privacy and trespassing. I head evidence from a number of tenants. That evidence dealt with complaints about the neighbouring tenants‟ behaviour. [14] Exhibit 3 is a plan showing the location of buildings on the two properties and an existing fence. [15] Exhibit 9 is a water and sewerage account for the period between 1/7/12 and 30/9/12 in the sum of $596.50. [16] Mr Jarvis gave evidence that the tap the subject of a complaint by Mr Cordingley was moved because it was on the fence which was on the land owned by Mrs Jarvis. He said any claim for excess water charges had nothing to do with this matter. [17] Exhibit 7 shows the existing fence built on the land owned by Mrs Jarvis. [18] During the hearing it was contended that fences in the area were constructed of different material. The school fence across the road was chain wire. Fences at 15 and 17 Jacaranda Street were different in that they were a mixture of wire with wooden posts and rails. Some nearby properties had no dividing fences. Some had a cyclone type fence. Some fences in the close vicinity were paling fences. [19] Exhibit 4 shows where the proposed new fence is to be located. Exhibit 6 shows existing 1.8m high paling fences in the area and the dog enclosure fence on No 21. [20] This application was filed on 24 May 2012. [21] The Neighbourhood Disputes Resolution Act 2011 („the Act‟) is applicable. [22] Section 7 provides that, “a sufficient dividing fence is required between 2 parcels of land if an adjoining owner requests a dividing fence". In my view that has occurred. [23] Section 7 further provides, “generally neighbours must contribute equally to the building and maintaining of a sufficient dividing fence.” -- 3 of 5 -- 4 [24] The Act encourages neighbours to attempt to resolve the dividing fence issue informally but if it can not be so resolved the dispute may be taken to QCAT. [25] Section 11 defines the meaning of a fence and section 12 defines the dividing fence as a fence on the common boundary of adjoining properties. Section 13 defines “sufficient dividing fences for 2 parcels of a residential land” as between a minimum of 0.5m and a maximum of 1.8m in height and consisting substantially of a prescribed material, or if QCAT decides the dividing fence is a sufficient dividing fence. Section 13 provides that in Chapter 2 (the dividing fences chapter) the existence of a fence other than a dividing fence on adjoining land must not be taken into account in deciding whether there is a sufficient dividing fence. [26] “Prescribed material” is set out in section 13 and includes “wood, including timber palings and lattice panels”. [27] Sections 14 and 15 defines “owner of land”, “adjoining land owner” and “adjoining owners”. There is no issue in this application concerning these matters. [28] Section 20 provides that “If there is no sufficient dividing fence between 2 parcels of land consisting of adjoining land an adjoining owner is liable to contribute to carrying out fencing work for a sufficient dividing fence.” [29] I find that there is no sufficient dividing fence and the proposed fence would be a sufficient dividing fence. [30] Section 20(2) provides that if carrying out fencing work (defined in section 16) includes construction of a sufficient dividing fence the fence must be constructed on the common boundary other than to the extent it is impractical to do so because of natural physical features. [31] In my view, it is appropriate in the circumstances of this application that the fence be on the common boundary. [32] Section 21 provides that “Adjoining owners are each liable to contribute equally to carrying out fencing work for a sufficient dividing fence". In my view in the circumstances of this application it is appropriate for each adjoining owner to contribute equally to the cost. In my view the fence proposed is not of a greater standard that the standard for a sufficient dividing fence. [33] However, I am not satisfied that Mr Cordingley has given a notice to contribute as required by section 30(2). [34] The notice given was not in the approved form as required by section 31(2) but the letter sent along with the quote gave much of the information required by section 31(2). The form is listed in the Act as Form 2 Version 1 as published in the Gazette of 28 October 2011 page 397. Section 31(1) does not require the giving of such a notice but it allows an -- 4 of 5 -- 5 owner to give a notice. In my view the other requirements of section 31 have been complied with. [35] However, section 30(2) requires the owner to give the adjoining owner a notice to contribute under Division 2, if the owner wants an adjoining owner to contribute. [36] In my view, that obligation has not been complied with. Section 30(3) allows an owner to apply to QCAT for resolution if a dispute arises about carrying out fencing work for which a notice to contribute has been given. In my view, since such a notice has not been given this Tribunal is not vested with the jurisdiction to make any orders as sought. [37] Section 31 allows either adjoining owner to apply to QCAT within 2 months of the notice being given if they have not agreed about the proposed fencing work and their contributions within 1 month of the notice being given. [38] Here if the letter of 18/4/12 was a complying notice (which I find it was not) the application was made within the 2 month period. [39] The failure to comply with the requirements of the Neighbourhood Dispute Resolution Act 2011 is unfortunate because in my view it means this Tribunal does not have jurisdiction to make any of the orders sought and because as indicated earlier if the Tribunal had jurisdiction I am of the view that an order requiring equal contributions to a sufficient dividing fence on the boundary as proposed in the last quote would have been appropriate. [40] In my view, the Tribunal does not have jurisdiction to make the order sought concerning tap repair and excess water usage but in any event I am not satisfied that Mrs Jarvis would be liable for those claims. [41] The appropriate order in the circumstances is that the application is dismissed. -- 5 of 5 --