Cullen v Maginn & Anor [2011] QCATA 21

CITATION: Cullen v Maginn & Anor [2011] QCATA 21 PARTIES: Stephen William CULLEN (Applicant/Appellant) v Martin William MAGINN And Marilyn MAGINN (Respondents) APPLICATION NUMBER: APL174-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President Jim Allen, Member DELIVERED ON: 14 February 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Grant leave to appeal; 2. Allow the appeal; and 3. Order that the respondents pay the applicant the sum of $374 as contribution to the demolition and replacement of part of the dividing fence between their properties within 14 days of the date of this order; and 4. Further order that the respondents pay to the applicant the sum of $30 in respect of costs of the application within 14 days of the date of this order. CATCHWORDS : APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – DIVIDING FENCES – where dividing fence has been removed and other owner seeks its replacement – whether adjoining owner liable to contribute Dividing Fences Act 1953 ss 6, 7, 8 Queensland Civil and Administrative Tribunal Act 2009 ss 8, 6, 32, 100, 102, 142(3) Queensland Civil and Administrative Tribunal -- 1 of 6 -- 2 Rules 2009 r 83 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited. QUYD Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41, cited. REASONS FOR DECISION President: [1] I have had the advantage of reading the reasons of Mr Allen, the other Member of the Appeal Tribunal in this matter. I agree with those reasons, and the orders he proposes. Jim Allen, Member: [2] Mr Cullen, and Mr and Mrs Maginn, own adjoining rural properties at Lower Beechmont. There had been a rock wall separating the properties which was built by Mr Cullen some years ago. This rock wall, according to Mr Cullen, was marginally within his boundary and he demolished it with the help of his son Errol in February 2010. [3] Behind that wall there was a partial timber screen which was left in place after the demolition of the wall and which was in need of repair. Mr Cullen wished to erect a paling fence to replace the rock wall, and a timber screen, and served Mr and Mrs Maginn with a notice to fence under the Dividing Fences Act 1953 (the Act). Mr and Mrs Maginn refused to make a contribution towards the fence. Mr Cullen then made an application to QCAT under s 9(1) of the Act. [4] The application was heard by a QCAT Adjudicator on 27 July 2010. The transcript of the hearing shows that the learned Adjudicator dismissed Mr Cullen’s application on the basis that there had already been a dividing fence between the properties, and that to order that one neighbour pay for the construction of a dividing fence when one previously existed would be unfair, unjust and inequitable. [5] The decision acknowledged that there was, under s 7 of the Act, a liability of owners of adjoining land to fence their land. This was qualified by the learned Adjudicator who said, in the reasons for her decision: “I am satisfied that this is relevant to land where perhaps no fences exist”. [6] Otherwise, the reasons show that she had, relevantly, been satisfied that: “… the wall that was there was removed without the permission, knowledge or consent of the respondent as it appears that the wall was removed prior to any agreement having been reached in relation to a replacement of the fence”. [7] The learned Adjudicator also considered the provisions of the Act in regard to the repair of existing dividing fences, and determined that they 2 -- 2 of 6 -- 3 did not apply, because the rock wall had been removed and the timber screen which remained would not have been relied upon if the rock wall had not been removed. [8] Mr Cullen seeks leave to appeal the learned Adjudicator’s decision. The Appeal Tribunal ordered that the application for leave to appeal (and the appeal if leave is granted) would be heard on the papers following the filing and serving of submissions by the parties: s 32 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The Appeal Tribunal has received submissions, which are discussed below. [9] Leave to appeal is required because of s 142(3) of the QCAT Act. Leave will ordinarily be granted only where the decision-maker erred and an appeal is required to correct a substantial injustice caused by that error;1 or the question in issue be one of general importance, and accordingly, one which the public interest requires should be subject of further argument and decision.2 [10] Mr Cullen alleged, in his written submissions, that: “he had advised Mr and Mrs Maginn on a number of occasions that the rock wall which was on his land not on the boundary would be coming down and that the paling fence would be going back up.” He stated that: “the paling fence was on the boundary and it had been in place for 30 years and it required replacing.” He further stated that “the rock wall took up half a metre of space and made it hard to turn his vehicles around.” In his appeal application he said that “he had legal advice that if the rock wall was on his land he could take it down”. [11] Mr and Mrs Maginn’s submissions say: “Mr Cullen had retained and filled in his land, to take trucks and excavators, to the extent that our driveway is below his land by about 4 metres at the rear and one metre at the front. On top of that the retaining wall until recently was a stone and concrete wall within keeping of his house and the fence on the other boundary. During the pulling down of the wall we received 2 quotes with the expectation and demand of paying half. We understand that if an existing fence needs repair, or within a new subdivision requiring a fence you go halves on the cost. That if Mr Cullen had informed us of his intentions and expectations, like anyone else we would have politely told him where to go. They do not feel compelled to contribute to his renovation.” [12] In short, Mr Cullen asserts that the rock wall was not a dividing fence and the Maginn’s claim that it was. The learned Adjudicator found that the rock wall was a dividing fence and that the Maginns could not be asked to contribute to a replacement of it when they had not agreed to it being demolished. The question is whether the Tribunal erred in determining that the rock wall was a dividing fence. 1 QUYD Pty ltd v Marvass Pty Ltd [2008] QCA 257. 2 McIver Bulk Haulage Pty Ltd v Fruehauf Australia Pty Ltd (1989) 2 Qd R 577 at 580. 3 -- 3 of 6 -- 4 [13] Mr Cullen, in his evidence before the learned Adjudicator, was adamant that: “the rock wall was not on the boundary, but about 50 mil inside my boundary”. For historical reasons, the Maginns are not able to rebut this evidence. [14] The evidence accepted by the learned Adjudicator showed that there is a long history associated with the fencing of the boundary between these two properties, and it is of assistance to set it out. The original dividing fence, a paling fence, was (according to Mr Cullen’s evidence) built in 1983 from timber which was sourced from the adjoining owner’s property and it extended for about 28 metres down the boundary from the front entrance. [15] Part of that fence, approximately 18 metres commencing at the front of the property, was removed in 1996 to enable an aluminium boat which Mr Cullen had built to be removed from his property. When Mr Cullen went to put that part of the fence back up six months to a year later it had been attacked by white ants, and was rotten. Mr Cullen did not replace that part of the fence at that stage as vegetation had grown up to provide privacy. [16] Mr Cullen says that, later, he built the rock retaining wall which he says was 50 mm within his boundary, in front of the paling fence and up towards the main road. [17] Mr Maginn said in evidence that: “In the seven years we’ve been there there’s been a rock wall and this little bit of a, it looks like a screen, it’s certainly not a fence”. He also claimed that the paling fence was a home made job and that it might be on his land. He said that the rock wall had run behind the paling fence for 10 metres and that there had been an additional 18 metres of the rock wall to the front of the property boundaries. [18] Mr Cullen claimed that the back of the rails of the paling fence were on the boundary. Mr Maginn said that the fence which remains “was pretty horrible and had been so since he had moved in”. [19] A dividing fence is defined in section 6 of the Act to include a fence separating the adjoining lands of different owners on a line on the common boundary. The definition also contemplates a fence which has been built on a line other than the line of or a line on the common boundary. [20] The definition should be read in conjunction with section 8(3) of the Act which sets out the circumstances under which a dividing fence may be proposed to be built on a line other than the common boundary. These include where it is impracticable to construct a fence wholly on the common boundary line or the adjoining lands are separated by a watercourse, lake, or other natural or artificial feature. 4 -- 4 of 6 -- 5 [21] It is section 8 of the Act which enables an owner who wishes to compel the owner of adjoining land to join in or contribute to the construction of a dividing fence, and to serve the adjoining owner with a notice to fence. [22] It is clear that a dividing fence had been constructed between the properties in 1983, and that part of that fence remains today. Mr Cullen later removed part of that fence in 1996 and built a rock wall in its place within his boundary and extending down to the end of the remainder of the original fence. [23] The learned Adjudicator has treated that rock wall as a dividing fence for the purposes of the Act and made a decision accordingly. That conclusion was not, with respect, open on the evidence. [24] Having regard to the only direct evidence – that the rock wall was built on Mr Cullen’s side of the original dividing fence, part of which remains – it is inescapable that the learned Adjudicator erred in holding that the rock wall was a dividing fence. It was not, on the only relevant evidence (from Mr Cullen) located on the boundary and there is nothing of the kind set out in section 8(3) which would enable the dividing fence to be constructed on a line other than the common boundary. [25] Mr Cullen has, then, suffered loss in having to build a new dividing fence without contribution from the adjoining owner in circumstances where that conclusion was reached, in the tribunal, against the only relevant evidence and in error. In the light of that error, Mr Cullen should have leave to appeal the decision. [26] Mr Cullen’s claim includes two separate components. The first is an amount of $671 for a one half share of an 18 metre section of new 1.8 metre high timber fence. The second is an amount of $374 for a one half share for replacement of a 10 metre section of existing fence with a 1.8 metre high timber fence. The amounts claimed represent the lower of two sets of quotes obtained by Mr Cullen. Mr Cullen has also claimed his filing fee in the amount of $90. [27] In regard to the first claim for the 18 metre section I am satisfied, based on Mr Cullen’s evidence, that a dividing fence had been constructed in 1983 and was in place until that section was removed by Mr Cullen in 1996. [28] Section 8(1) of the Act requires that an owner who wants to compel an owner of adjoining land to join in or contribute to the construction of a dividing fence (including the demolition of an existing fence and the erection of a new fence) must serve the owner of the adjoining land with a written notice to fence first. In this case the old fence was demolished some 14 years ago without the agreement of the adjoining owner and it was only in 2010 that the decision to erect a new dividing fence was taken and the notice to fence was served. 5 -- 5 of 6 -- 6 [29] Mr Cullen has therefore not complied with the requirements of section 8(1) of the Act and is not entitled to any contribution from Mr and Mrs Maginn in regard to the construction of the 18 metre section of fence. If the rock wall were to be considered as a dividing fence the claim would not have been allowed as determined by the learned Adjudicator because it was demolished before the appropriate notice to fence had been served on the adjoining owner. [30] The second claim relates to the demolition of an existing 10 metre section of dividing fence and its replacement with a new 1.8 metre wooden fence. The parties both agreed that this section is in poor repair. This fence was built in 1983 and as there is agreement by the parties as to its need for replacement rather than repair. I am satisfied that an order for repair is not appropriate. [31] The Appeal Tribunal is required to take into consideration the kind of fence usual in the locality in accordance with section 8(4) of the Act. Mr and Mrs Maginn submitted that “trees, hedges or shrubs suffice as opposed to fences”. In his submissions Mr Cullen stated “there may be 100 paling fences.” The definition of fence in section 6 of the Act does not include a hedge. I am satisfied that the fence proposed to be constructed is usual for the area, based on Mr Cullen’s evidence. [32] Section 7 of the Act requires that adjoining owners contribute in equal proportions to the construction of a dividing fence between their land. In their submissions Mr and Mrs Maginn stated that “they understand that if an existing fence needs repair.. you go halves in the cost”. Mr and Mrs Maginn then went on to say that “they would not have agreed to contribute as Mr Cullen had pulled down a perfectly good wall, in keeping with the surroundings and his house, that would last forever, to replace it with a paling fence”. [33] The wall in question was on Mr Cullen’s land and he was, therefore, entitled to do with it what he wished. Mr Cullen has asked that the Maginn’s pay for half of the cost of replacing the paling fence. The dividing fence was the paling fence which was in disrepair and required replacement. The appropriate order is that the adjoining owners bear 50% of the cost of replacing the paling fence, in the amount of $374 each. [34] Mr Cullen has also made application for his costs in this matter in the amount of $90, which is the amount prescribed for the application. This is the costs limit in respect of the minor civil dispute jurisdiction in accordance with the QCAT rule 83. Section 100 of the QCAT Act states that each party should bear their own costs and by section 102 of that act costs may be awarded in the interests of justice, which includes consideration of the complexity of the matter and the relative strengths of the claims of the parties. There were some complicated factual issues in regard to this matter and Mr Cullen has been successful in regard to part of his claim. The Tribunal orders that Mr and Mrs Maginn pay an amount of $30 in respect of Mr Cullen’s filing fee in the application. 6 -- 6 of 6 --