Cox v Lashmar and Anor [2011] QCAT 708

CITATION: Cox v Lashmar and Anor [2011] QCAT 708 PARTIES: Lucille Cox (Applicant/Appellant) v Alan Lashmar Helen Lashmar (Respondents) APPLICATION NUMBER: MCDO700001-11 MATTER TYPE: Other minor civil disputes matters HEARING DATE: 28 July 2011 HEARD AT: Brisbane DECISION OF: William LeMass, Member DELIVERED ON: 30 August 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. That the applicant complete the fence in a workmanlike manner and notify the respondents. 2. The respondents pay to the applicant the sum of $1,086.25 within 14 days of completion of the work in 1 above. CATCHWORDS: Retaining wall Dividing Fences Act 1953 Jackson v Randall [2000] 2 Qd R 31 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Steven and Mrs Lucille Cox RESPONDENT: Mr Alan and Mrs Helen Lashmar REASONS FOR DECISION [1] This matter concerns the obligations of adjoining owners to contribute to a dividing fence, what is a dividing fence, does it include a retaining wall and what are the appropriate contributions to the cost of the fence. -- 1 of 5 -- 2 [2] Mrs Cox, the claimant, who is ably represented by her son contends that her neighbours Mr and Mrs Lashmar should pay one half of the cost of constructing both a fence and retaining wall upon the boundaries of their properties, which had been washed away by local flooding in the Brisbane suburb of The Gap in November 2008 pursuant to a notice given under the Dividing Fences Act 1953. [3] Mrs Cox has lived in the house for in excess of 25 years and the Lashmar’s in their home for a period longer than this. Their occupation predated the construction of Mrs Cox’s home. Ms Lashmar states that she recalled when Mrs Cox’s home was built and that the land was excavated to the boundary in order to provide a horizontal surface for the slab which formed the foundation of Mrs Cox’s home and upon which her house was constructed. [4] As a result of this excavation the predecessors in title of Mrs Cox owed a duty to support the adjoining land at the boundary pursuant to section 179 of the Property Law Act 1974 and satisfied that duty by the construction of a retaining wall. [5] To the extent that there is direct evidence of this the excavation is given by Ms Lashmar. I am satisfied that the construction was a necessity following that excavation. [6] Mr and Mrs Lashmar have provided photographs which show the original sewer man hole at the level of natural ground on their property which supports the proposition that their land was not filled but rather that Ms Cox’s land, the level of which is a clear metre below the Lashmars, has been excavated and I accept this as corroborating the evidence of Mrs Lashmar. [7] The structure then constructed and since repaired is that of a timber sleeper retaining wall of approximately 1 metre high and 14.5 metres long at the back boundary of the property. This is not the total length of the boundary and in fact the balance of the boundary is retained by a similar height but block construction retaining wall. Both retaining walls have a steel pole and mesh fence attached to those retaining walls, immediately on top thereof. The Law [8] The appropriate legislation to consider as regulating the parties rights is the Dividing Fences Act 1953. [9] Section 7 of the Dividing Fences Act 1953 says: “The owners of adjoining lands not divided by a sufficient fence shall be liable to join in or contribute to the construction of a dividing fence between such lands in equal proportions.” -- 2 of 5 -- 3 [10] Section 6(1) defines a fence as: “Includes any foundation, foundation wall, or support reasonably necessary for the support and maintenance of the fence.”1 [11] In determining the matter the Act allows this Tribunal pursuant to section 9(1)(b) to determine: “What portion thereof shall be constructed by each person, or, as determined on the merits, that the whole of the fence shall be constructed by the person specified or that 1 person shall pay a greater proportion of the cost of such construction than the other and the amount of that proportion”. [12] Also relevantly, with respect to repair is section 16(3). [13] So whilst the starting point in the Act is that parties are equally liable it is open for the Tribunal to find that in proper circumstances, the contributions can be less or greater than equal. [14] The question as to whether a retaining wall could be a fence was considered by his Honour Justice Derrington in Jackson v Randall.2 [15] This was an Appeal from the Magistrates Court. In that matter his Honour said: “The position was slightly complicated because the applicant may have built up part of her land with soil or alternatively the land of the respondent may have been excavated. But in any case the present applicants land was at a higher level at the boundary.” [16] To accommodate the variation in height between two properties the fence was designed with approximately seven sleepers placed in the ground and a similar number placed at ground level for the purpose of forming a barrier to prevent any slippage of soil. [17] The applicant claimed that the Magistrate exceeded his jurisdiction by including in his order a provision for the soil retention work in the form of a retaining wall which was beyond the power of any order he was competent to make in relation to a fence. [18] The applicant said that the existence of a retaining wall precluded it from being considered a fence under the Act. His Honour said: “In the present circumstances the fence as designed was plainly designed with both purposes in mind as has been indicated above but 1 My emphasis. 2 2 Qd R 31. -- 3 of 5 -- 4 that does not prevent it from being regarded as a fence. It was plainly primarily a fence and it was also clear that it was plainly appropriate to erect in conjunction with that fence some suitable small barrier as base to obtain the soil from the upper land. In these circumstances it can not be said at all that the structure that was the subject of the Magistrates order did not constitute a fence within the meaning of the Act.” Further: “Having regard to the circumstances of this case it seems to be both reasonable and practical that the soil retention aspect be considered part of the fence and that it was appropriate that the necessary feature be included in it.” [19] To compare the circumstances of this case and Randall, it is plain that the whole structure is not primarily a fence. In terms of cost alone the fence is quoted at $2,172.50 and the wall $6,248.00. I can not find, where the structure of the wall is some three times the cost of the fence, that the structure is primarily a fence and was reasonably necessary3 for the support of the wall. [20] The primary purpose of this wall was historically and is now, to provide support to an uphill owner following excavation4. I therefore find the respondent is not liable to contribute to the repair of the wall. Further, on any view of the whole construction, the applicant would be found liable for these costs pursuant to the provisions of section 9(1)(b) and 16(3) of the Act and referred to by his Honour in Jackson v Randall (ibid) paragraph 15. The respondents’ second argument [21] The respondents contend that they should not in any case be liable to contribute towards the cost of a fence because the applicant did not comply with the Act or use the appropriate notice pursuant to the Dividing Fences Act 1953. This is, it is contended, because the fence was section 8(1): “contribute to the construction of a dividing fence (including the demolition of an existing dividing fence and the erection of a new fence)”. [22] So that the applicant should have complied with the procedure set out in section 8 with respect to construction of new fence rather than the procedure that they did adopt pursuant to section 16 being a notice to repair a fence. 3 Section 6(1) Dividing Fences Act 1953. 4 As is required pursuant to s 179 Property Law Act 1974. -- 4 of 5 -- 5 [23] Whilst the procedure preferred by the respondent may have provided both parties with a more satisfactory outcome it is a technical view of the Act and one which would rob the applicant of any remedy which the Act was designed to achieve. [24] A small section of the wall and fence was not demolished and hence may properly be construed as a repair. The applicant was open to take one of two courses pursuant to the Act and issue one of two notices. That the applicant chose one method pursuant to section 16 should be construed to allow her a remedy. I am not persuaded otherwise. Final Issue [25] The final issue raised by the respondent is that the fence was not completed in a workman like manner. That the respondent has produced a photograph to show that at the fence’s conclusion and joinder to the old fence that it is insufficient for the purposes of dividing the property and indeed insufficient for keeping in a dog. It is clear from those photos that the fence has not been properly finished and the applicant must prior to any remedy pursuant to this hearing ensure that the tradesperson is recalled to the property and finishes the work in a workman like manner. [26] Accordingly I order that the respondent pay to the applicant on a date being 14 days after notice of completion of the above work one half of the cost of construction of the fence only in an amount of $1,086.25. [27] I comment only for the purposes of completeness that the definition of a fence pursuant to the now current Neighbourhood Disputes Resolution Act 2011 excludes a retaining wall. -- 5 of 5 --